Utah Court’s Aereo Decision: A Preview of Supreme Court Outcome?

February 21, 2014

It’s difficult to believe that so many judges and lawyers could disagree over what would appear, at first blush, to be a straightforward issue of copyright law. Can a company legally copy over-the-air TV broadcasts and transmit them to subscribers over the Internet, as long as it stores and transmits a separate copy for each customer? Two companies have adopted this technology,, Aereo and FilmOn X (fka “”). Two federal courts have held that this does not violate the copyright rights of broadcasters (New York’s Second Circuit and a Massachusetts district court), and three courts have held it does (the California, D.C. and Utah district courts). Thus far, all of the rulings have arisen in the context of preliminary injunction motions, and until the Utah court’s ruling on February 19, 2014, Aereo had survived two challenges (New York and Massachusetts).  FilmOn X had suffered the two losses (California and D.C.). Before the Utah decision, the Supreme Court had accepted review of the New York case, an unusual development given the fact that none of these cases involved a final judgment on the merits. The Utah decision may prove to have tipped the balance, in more ways than one. Not only is the count now 3-2 in favor of the broadcasters in judging the legality of the “individual copies” technology, but Utah Federal District Court Judge Dale Kimball — a 17…

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My Interview on the DMCA on URBusiness Network

February 11, 2014

A couple of weeks ago I returned to the offices of the URBusiness Network to discuss the Digital Millennium Copyright Act (DMCA). This was my second trip to the URBusiness Network, an online radio network with a wide range of business shows. The subject of the first show, recorded last October, was web site liability for third party postings under the Communications Decency Act (CDA). However, the CDA does not protect web sites for user postings that violate copyright law, so copyright liability and the DMCA were the topics of the current show. Once again it was a pleasure to be interviewed by Ruck Brutti, who was joined on this occasion by co-host Nathan Roman. You can listen to the new show here.

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Viacom v. YouTube, Mother of All DMCA Copyright Cases (part 2 of 2-part post)

January 26, 2014

[This is part 2 of a 2-part post. To read part 1, click here] [Update: Viacom v. Youtube was settled before the Second Circuit rendered its decision on the appeal discussed in this post] After the events described in part 1, Kevin Kickstarter, founder of YouPostVid, meets with his lawyer, Mr. Jagger, to discuss whether YouPostVid needs to change its approach to managing copyrighted videos posted by users of the site. In preparation for this meeting Kevin has read the decisions in Viacom v. YouTube, and Mr. Jagger* has familiarized himself with YouPostVid’s compliance practices under the DMCA. *[Note] Mr. Jagger’s name is a  play on the infamous  lawyer in Great Expectations, by Charles Dickens. Kevin Kickstarter: Mr. Jagger, what I don’t understand is this – we comply with valid DMCA takedown notices. We take down thousands of video clips a month in response to takedown notices. However, the DMCA also says that we can lose our  immunity if we have “actual knowledge” of infringement, or if we are “aware of facts or circumstances from which infringing activity is apparent” — what you call “red flag” knowledge — or if we engage in “willful blindness,” a concept I don’t understand at all. At the same time the DMCA says that we have no obligation to monitor for infringement. How can I run a business based on this confusing set of rules?…

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Supreme Court Grants Cert in Aereo Case – See My 4-Part Blog Post on the Case

January 13, 2014

On Friday the U.S. Supreme Court granted review in American Broadcasting Companies, Inc. v. Aereo, Inc. I wrote a 4-part post on this case in the Spring of 2013. Part I of the series begins here. The series begins as follows: Aereo is a company that has developed a system that captures over-the-air television (broadcast TV) and retransmits it to subscribers over the Internet. Subscribers are able to watch broadcast TV on their computers, tablets and smart phones. Even better, Aereo acts as a remote digital video recorder (a remote DVR) so subscribers can record programs and stream them at another time. Aereo launched in New York City in early 2012, but it has announced that it is expanding to 21 other cities in 2013. Is this a problem for broadcasters? You bet it is. . . . . continue reading

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Viacom v. YouTube, Mother of All DMCA Copyright Cases (part 1 of 2-part post)

December 28, 2013

[This is the first of what will be a two-part post on Viacom v. YouTube] [Update: Viacom v. Youtube was settled before the Second Circuit rendered its decision on the appeal discussed in this post] It seems unlikely that the drafters of the DMCA — a law enacted in 1998, the same year Google was incorporated — anticipated how difficult the courts would find application of this complex, near-5,000-word statute. There may be no better case to illustrate this than Viacom’s long-running suit against YouTube (a company owned by Google). As of November 2013 briefs had been filed in the second appeal in Viacom v. YouTube, and the case is likely to be scheduled for oral argument before the Second Circuit sometime in the first few months of 2014.* *[Note]: I have written about Viacom v. YouTube several times during its long history (the case was filed in 2007). See, e.g., YouTube Scores Big Victory on Remand in Viacom DMCA Copyright Case; Second Circuit to YouTube (i.e., Google): Remanded for Trial; Decision in Viacom v. YouTube: Dog Bites Man (Mark Cuban was wrong). To say that the appeal briefs are a hard slog would be an understatement. The parties and the courts have immersed themselves in legal obscurities that will be of almost no interest to most non-lawyers, and which are likely to be incomprehensible to lawyers unwilling to bury themselves in the nuances of the…

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Oral Argument in Oracle v. Google: A Setback for Google?

December 10, 2013

On November 26th I published a post titled “Oracle v. Google: How Google Could Lose on Appeal.” Oral argument before the Court of Appeals for the Federal Circuit was held on December 4, 2013, and a recording of the oral argument has been released. Based on comments and questions from the bench, the hearing went poorly for Google. The very  points I raised in my post were raised by the judges in questions to the attorneys for the parties. As I commented in my post, District Court Judge Alsup’s order ruling that the Java declaring code copied by Google was not copyrightable was vulnerable because Judge Alsup seemed to rely on factors and cases relevant to copyright fair use (specifically interoperability) to justify a finding that the Java declaring code was not protected by copyright. And never, the CAFC judges rightly observed, may the two mix. It is quite correct to say (as Oracle has argued) that a finding that a work is not protected by copyright must stand on grounds independent from a finding that copying was permitted by fair use. The Federal Circuit seemed eager to seize on this confusion in Judge Alsup’s decision. To wit (comments from the CAFC judges): “As I read the trial judge’s opinion I’m confused about how he viewed fair use because it seems to me he was merging it with the question of…

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The Authors Guild v. Google and Fair Use

December 4, 2013

 “[Google Books] could be the most important contribution to the spread of knowledge since Jefferson dreamed of national libraries. It is an astonishing opportunity to revive our cultural past, and make it accessible.” – Lawrence Lessig “The scale of Google’s plans boggles the mind.”  Prof. James Grimmelmann ” Letting Google organize all of the world’s information makes as much sense as letting Halliburton organize all of the world’s oil.” Evgeny Morozov Be admonished: of making many books there is no end; and much study is a weariness of the flesh – Ecclesiastes 12:12 ________________________ As most people with an interest in copyright law, book publishing or Google are aware, Google has undertaken a Herculean task. It’s goal is to digitize and index every word in the world’s books. All 130 million of them, from the Dead Sea Scrolls to the most recent Jack Reacher book by Lee Childs. As to the U.S. books it will provide electronic access differentially, depending on whether the book is in-copyright or in the public domain. This undertaking has caused consternation in some corners of the publishing industry, leading to copyright infringement lawsuits against Google. The most important of these cases  — The Authors Guild v. Google — has been pending in the Federal District Court for the Southern District of New York since 2005, a near-Dickensian eight years. (The EFF summarizes the procedural background of the…

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Oracle v. Google: How Google Could Lose on Appeal

November 26, 2013

I recently had the privilege of making a presentation on the Oracle v. Google copyright case at the Boston Bar Association (slides here), and although how Google could lose on appeal wasn’t the focus of the talk, that’s what I found myself thinking about after the program. Argument before the Court of Appeals for the Federal Circuit (CAFC) in Washington, D.C. is scheduled for December 4, 2013, and a decision is likely by late summer or early fall, 2014. I view the core issues that threaten Judge William Alsup’s order holding that the structure of the Java API “declaring code” (but not the “implementing code”) is not copyrightable to be the following. 1.  Was Judge Alsup Wrong to Include “Interoperability” In His Analysis of Copyrightability? The heart of the court’s decision that the structure of the Java declaring code (7,000 lines of code) is not copyrightable centers around the conclusion that Google’s use of this code in Android is necessary for third-party partial interoperability with Java.  As the judge stated in his order, “Millions of line of code had been written in Java before Android arrived … Such code was owned by the developers, not by Oracle. In order for at least some of this code to run on Android, Google was required to provide the same command system.” The judge went on to state that “Google was free to duplicate the command…

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Google Book Decision Would Have Thrilled My Father

November 15, 2013

When I began this blog in 2005 I discovered that I had one loyal reader: my father, Bennett Gesmer.  After he passed away on July 4, 2010, just shy of age 90, I found a folder with printouts of all my posts in his desk. My father was a member of the “Greatest Generation.”  He was an Air Force captain in WWII. He spent two years in the Philippines, and the current tragedy there would have deeply saddened him. My father graduated from MIT with a degree in chemical engineering after the war, and spent his life in that business.  He was an “intellectual-without-portfolio” whose heroes were Albert Einstein and Richard Feynman (he overlapped with Feynman at MIT before the war). Like most people trained in science he knew almost nothing about the law. His initial reaction to my blog posts was one of surprise.  “The law is that unclear?” he asked me. “Even judges don’t agree on the law?” In his mind the law was codified, and all a lawyer had to do was look up the answer, which would be clear as day. He was surprised to learn that often the law is as clear as mud. Of all the cases I wrote about he expressed real interest in only one: Google Book Search. After I published the first of several posts on this case in November 2005, he…

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Slides From BBA Presentation: “Oracle v. Google: Are APIs Copyrightable?”

November 14, 2013

Here are the slides from a presentation I made at the Boston Bar Association on November 13, 2013.  The slides are embedded below, and a direct link to the file is here.

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Supreme Court to Review 9th Circuit Decision in “Raging Bull” Copyright Case

October 2, 2013

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…

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Judge Stearns Weighs in on Legal Standard for Copyright Takedown Notices

September 30, 2013

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…

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