THE COPYCAT - takedowns, takeaways and turnarounds

Is Aereo on the way back? Eight months after losing its legal battle with television networks, the failed watch-TV-on-the-Internet startup held an auction for its assets - and interestingly its trademarks and customer list, which went to TiVo for the bargain price of $2 Million.  What could TiVo do with these assets?  Well on Forbes Bill Rosenblatt suggests this: "Here’s an intriguing possibility: TiVo could be looking into offering an Aereo-like service but one that’s licensed by TV networks".

German-based Total Wipes Music Group hit the news recently after issuing a number of mistaken (and in hindsight rather ill judged attempts) to remove entirely legal content published by the likes Walmart, Ikea, Fair Trade USA and Dunkin Donuts using the DMCA takedown procedure - to seemingly protect content it manages. The company apologised on its Facebook page on 23rd February saying: "Due to technical servers problems on the first February week our script sent hundreds DMCA to hundreds domains not related at all any copyrights of our contents. It was our fault, no doubts about it. The DMCA is a serious issue and it must be carefully managed. We contacted most of these domains but it was too late, the DMCA had already been sent. Google rejected most of these wrong DMCA but we totally understand the damage of it for small and medium companies that have to remove and manage them manually. It was a bug just on that week. However, our Antipiracy system has been taken down a week ago in order to add more improvements and avoid any future sending of wrong DMCA. Our apologies again for all sites involved and thanks to all persons that reported us the issue. However, it seems a glitch happened again, this time in the form of a attempt to protect an album called "Cigarettes" on the Mona label - which ended up targeting  an article on how use PGP on the Mac - published by none other than the EFF - which was a duly removed by Google. But TorrentFreak has an interesting take on this - and apart from amending legislation to allow for habitual abusers of the DMCA and other notice systems to be banned - shouldn't those who issue mistaken takedown notices be subject to damages - and criminal charges? With the headline "Monopoly Fraudsters Need To Go To Jail With Heavy Damages, Torrent Freak opines: "It’s a complete mystery why this isn’t a criminal behavior. The fact that it isn’t is why it continues and harms innovation, creativity, free speech, and the Internet. The Swedish Pirate Party had a very clear policy on crimes like this: if you lied about holding an exclusive right to something, the same penalty that would have applied to an infringer of that exclusive right would instead apply to you. This is only fair, after all: you are infringing on the distribution of a creative work by dishonest means. For repeat offenders, or organizations that committed this crime on a commercial basis or commercial gain, like that idiot record label in the TorrentFreak story – they would be declared criminal organizations and have all their assets seized. The individuals doing so for commercial gain would go to jail for a couple of years". The Total Wipes website currently says this" The Public Area of this website is undergoing upgrading works. We apologise for any inconvenience caused. Thank you for your patience.

MegaUpload founder Kim Dotcom has returned to court in new Zealand in an attempt secure more of the monies seized when his former company was shutdown by US authorities in 2012. Prosecutors in America, and the US music and movie industries have argued that, if their civil litigation against MegaUpload is successful, that money will be needed to pay damages to copyright owners. Dotcom had been granted around $15,000 a month from funds seized in New Zealand to cover living costs, Dotcom now says he is "broke and destitute", and needs to increase his monthly allowance to $152,000, plus extra monies to cover legal fees of up to $3 million. His New Zealand legal team quit last year because over unpaid fees and the court is bound to ensure the Mega founder's new legal reps can be paid as he continues to fight efforts by the US to extradite him to face charges of criminal copyright infringement there.

In the U.S. a picture by Robin Morris which was previously exhibited at the Trunbull Library has been removed amidst claims that bogus worries about copyright were being used to censor the work by those who objected to the painting on religious grounds - not least because the painting contains a reppresentation of Mother Teresa alongside several famous women in history, including Margaret Sanger - the birth control activist, sex educator and founder of Planned Parenthood. The Library said they were not insured against claims of copyright infringement, and explained the take down saying "In recent weeks, independent organizations have alleged potential copyright infringement with the use of Mother Teresa’s image in one of the pieces of artwork”. The Gallery also said it was concerned it lacked covef for any potential liability should the paintings be damaged, stolen or destroyed. The Town's first Selectman Tim Herbst said “After learning that the Trumbull Library Board did not have the proper written indemnification for the display of privately-owned artwork in the town’s library, and also being alerted to allegations of copyright infringement and unlawful use of Mother Teresa’s image, upon the advice of legal counsel, I can see no other respectful and responsible alternative than to temporarily suspend the display until the proper agreements and legal assurances are in place,” adding. “I want to make it clear that this action is in no way a judgment on the content of the art but is being undertaken solely to protect the town from legal liability based upon a preliminary opinion from the town attorney.” The owner of the pictures, Richard Resnick, recently has sent the Library and the Town an email, stating the Town would not be responsible for any legal action or damage to the paintings. More here.

A U.S. dentist who used a privacy agreement to assert a copyright claim over a peeved patient's review of his practice to try and censor critiism online has lost a court case. The patient, who claimed he had been over charged and that the dentist had "screwed up submitting his claims to his insurer", has now been awarded $4,766.00 after a default judgement by a U.S. District Court in the Southern District of New York. The Judge said that no copyrght claim could be made as the review was fair use, and held that the prohibition against negative criticism, along with the use of copyright claims to prevent the review from being seen constituted  "breaches of fiduciary duty and violations of dental ethics and are subject to the equitable defenses of unclean hands, and, as to such assignment and assertion, constitute copyright misuse.” More here and the judgment here.

Rappers Wu-Tang Clan have set up a website to run the auction for their album, 'Once Upon A Time In Shaolin' whioch has been released with a single pressing of the 31 track, 128 minute record - the person places the highest bid will buy the lone CD and the box that contains it. And according to the record's producer Cilvaringz, after a 88 year holdback - the owner of the physical CD will be assigned the copyright in the recording as well and could choose to release the album. Cilvaringz told Forbes: "After 88 years the copyright, which includes public and commercial rights, automatically transfers to the owner of the work. [But] it will still be his or her choice at that [point] to release it or not release it". This week 200 people attended the sole public airing on the album at in a heated dome outside New York's MoMA PS1. Guests and journalists were forced to put their cell phones in plastic bags at the front desk to avoid the 13-minute album excerpt from leaking.  According to Wu-Tang leader the RZA, bids have reached $5 million.

The CopyKat - waving a goodbye paw for Mike, the GRD, Aereo's old business model, and the World Cup.

Mike Weatherley MP

Mike Weatherley MP, who has been particularly vocal on music business and intellectual property issues in his time in the UK Parliament, has announced he will not re-stand at next year's General Election. The Member of Parliament for Hove and Portslade since 2010, Weatherley worked in both the music and film industries before entering politics. He has been very involved in the All Party Parliamentary Groups on music and ticketing, and last year became the IP Advisor to Prime Minister David Cameron - as well as running the 'Rock The House' band competition which saw winners pay live in the Speaker's Rooms at the House of Commons in London. Commenting, Mike said: “This has been an exceptionally difficult decision to make. It has been a remarkable opportunity to represent the wonderful residents of Hove and Portslade in Parliament and I look forward to continuing to do this until the election near year.” Mike recently successfully battled cancer.

Indian TV company Multi Screen Media, a Sony subsidiary, has secured wide ranging web-block injunction in the Indian courts forcing internet service providers in the country to block some 219 websites - although the original legal filing last month reportedly targeted 479 offending online services who were illegally streaming FIFA World Cup programmes. Rather than targeting the sites, Multi Screen looked for blocking order(s) and the judge in the case said "Learned counsel for the plaintiff submits that many of the websites [in the list] are anonymous in nature and it is virtually impossible to locate the owners of such websites or contact details of such owners. It is further submitted that many of these rogue websites also hide behind domain privacy services offered by various domain name registrars".


Variety reports that following its defeat at the Supreme Court, Aereo is pursuing a new legal strategy in an effort to keep its broadcast streaming business alive. In a letter to U.S. District Judge Alison Nathan on Wednesday, Aereo’s legal team is claiming that it is eligible for the same statutory license that cable companies pay in providing broadcast transmissions to their subscribers. Aereo cites the Supreme Court majority opinion, which was rooted in the idea that because Aereo was “substantially similar to” a cable system, it fell under provisions of the 1976 Copyright Act that target such multichannel distributors and is "proceeding to file the necessary statements of account and royalty fees”.

UK collecting society PRS For Music has confirmed that the much anticipated Global Repertoire Database - a central database for musical works - has run been scrapped, though said that it remained "committed to the principles of a single point of works registration" and hoped lessons learned from the GRD could be employed in future song ownership data ventures. CMU Daily reports that the GRD was initially backed by all the big publishers, most of the significant music collecting societies, and some of the digital players who need access to the data. ICE, the joint venture between PRS For Music and Swedish collecting society STIM, was appointed as a technology provider, Deloitte were handed the business development role but recent missed self imposed deadlines and this week sources told Music Week that after £8 million in investment, the venture had been "scrapped due to a fall-out of collection societies over funding". 

Breaking news - boadcasters triumph in Aereo battle

On 25th June the U.S. Supreme Court ruled that Aereo, the controversial streaming video service which used the much mentioned 'mini antennae' to deliver its service to paying customers - has violated US copyright laws by “capturing broadcast signals on miniature antennas and delivering them to subscribers for a fee.” The split court - in  a 6-3 decision - has handed down a decision which will prevent Aereo selling a service that allows its subscribers to watch television programs over the Internet at about the same time
as the programs are broadcast over the air agreeing that Aereo was infringing the broadcasters right to 'perform' their copyrighted works 'publicly'. The District Court has denied a preliminary injunction and the Second Circuit had affirmed. The decision has wide-ranging implications for the television industry: but it is a victory for current business models and will undoubtedly be seen a victory for the major television networks, which had argued that Aereo’s business model amounted to theft of their programming - and that Aereo 'performs' the works and doesn't merely provide equipment allowing others to so do.

I must be brief but the decision is here: http://www.supremecourt.gov/opinions/13pdf/13-461_l537.pdf

Background here http://the1709blog.blogspot.co.uk/2013/10/aereo-battles-seem-destined-for-supreme.html

Supreme Court's decision in Aereo could have a significant impact on other technologies

In the recent oral hearing, U.S. Supreme Court appeared a little unsure of whether to rule against Aereo Inc in the major copyright case brought by a group of US broadcasters against the controversial start up.  Several justices raised concerns about how a ruling in favour of broadcast networks could affect increasingly popular cloud computing services - and with both liberal and conservative justices split on what the way forward should be. That said, Aereo, backed by media mogul Barry Diller, could be forced to shut down if the Supreme Court rules for the four major television broadcasters, with the broadcasters saying the service violates copyright law. Aereo charges users a low monthly fee to watch live or recorded broadcast TV channels on computers or mobile devices. Aereo, which launched in 2012, offers the public a means to view broadcast TV over the internet, providing an alternative to expensive cable TV services and say all they do is enable people to access the airwaves with tiny TV antennas, and for this reason the company says they don't have to license broadcasts.

Several Supreme Court justices expressed scepticism at the Aereo business model at the Tuesday hearing, saying that it looked like the company had created to a "technical workaround" to bypass copyright laws: "Your technology model is based solely on circumventing legal prohibitions” Chief Justice John G. Roberts said to Aereo’s attorney David Frederick and asked if there was any particular reason why the company uses thousands of individually assigned antennas - except to avoid copyright fees owed to broadcast networks: “It looks as if somehow you are escaping a constraint” other companies are held to under copyright law, Justice Stephen Breyer said and Justice Ruth Bader Ginsburg noted that one lower court judge’s dissenting opinion stressed that Aereo appeared to be a technology entirely conceived as a legal workaround saying “You are the only player so far that doesn’t pay [a] royalty”.  Retransmission fees are expected to reach $3 billion in the U.S. this year.


But some justices also raised concerns that a decision siding with the television broadcasters could have far-reaching effects on new Internet, cloud and other technologies - from companies such as Google, Microsoft, DropBox and Box, which would then be swept up in other questions about the reach of copyright laws. Justice Stephen Breyer told the networks' attorney, Paul Clement, that his legal argument "makes me nervous about taking your preferred route" and that  he was concerned about what a decision “will do for other technologies.” Justice Sotomayor continued this line of thought, citing different technologies–Dropbox, iCloud, Roku and Simple.TV - and asked lawyers for both sides to make distinctions between them and Aereo. At one point she gave the example of a coaxial cable supplier and asked Clement, “How do I avoid a definition [of ‘public performance’] that might make those people liable?”

The company's fate was placed in the hands of the Supreme Court when ABC network, CBS Broadcasting, Comcast's NBCUniversal and Twenty-First Century Fox appealed a decision by the 2nd U.S. Circuit Court of Appeals in April 2013 that denied their request to shut Aereo down while litigation moved forward.

The Electronic Frontiers Foundation (EFF) commented "The Court will probably decide the case by late June. Yesterday’s oral arguments didn’t give much indication of how the Supreme Court will ultimately rule. But they made clear that the Court is rightfully concerned about side effects of too broad a ruling. It's only in the most narrow sense that Aereo is a case about dime-sized antennas. Fortunately, the Court seems to realize that the issues it raises are much, much larger."

Following the oral arguments,  counsel for Aereo, David Frederick, said, "The court's decision today will have significant consequences for cloud computing. We're confident, cautiously optimistic, based on the way the hearing went today that the Court understood that a person watching over-the-air broadcast television in his or her home is engaging in a private performance and not a public performance that would implicate the Copyright Act."  

New York University School of Law Professor Chris Sprigman explains the copyright law behind the Supreme Court case with 'billions of dollars' of re-transmission fees at stake - and what the decision may mean for the television industry going forward on Bloomberg Television’s Market Makers http://www.bloomberg.com/video/aereo-broadcast-television-and-u-s-copyright-law-QcnU7kRoQQueVRpa30L9cg.html 

More on the Washington Post here and the EFF here. 

Wednesday's CopyKat is an off-to-court Kat: how apealing

Variety reports that MGM and James Bond producers Danjaq have filed a copyright infringement suit against NBC Universal claiming that the studio’s planned “Section 6″ feature film is a rip off of the lucrative 007 franchise. The law suit, filed in U.S. District Court in Los Angeles, also names screenwriter Aaron Berg and says. “This lawsuit concerns a motion picture project, in active development, featuring a daring, tuxedo-clad British secret agent, employed by ‘His Majesty’s Secret Service,’ with a ‘license to kill,’ and a 00 (double-O) secret agent number on a mission to save England from the diabolical plot of a megalomanical villain”. I have to say that does sound familiar ......  mind you, it would also sound quite like the plots of the Johhny English films too. The suit goes on to say that the the project, which is planned to be directed by Joe Cornish and starring Jack O’Connell “misappropriates from the James Bond works far beyond the signature aspects of James Bond,” and that it copies “in detail nearly every aspect of the characters, plots dialogue, themes. setting, mood and other key elements of the copyrighted James Bond literary works and motion pictures.”  In 1995 a federal court in Los Angeles ruled in favour of MGM in its contention that a Honda commercial violated its copyrights with a commercial that evoked Bond, even though that name was not used. Injunctive relief is sought. 

The American Cable Association (ACA) has become the the latest trade body to come out in support of the legitimacy of the Internet TV streaming service Aereo in the upcoming appeal in the US Supreme Court. The ACA – which represents some 850 smaller and medium-sized, independent cable companies – has filed an amicus brief urging the Court to uphold the legality of Aereo’s technology as safely fitting within the tradition of maintaining the public’s ability to access freely available local broadcast TV signals, and reject the copyright claims from broadcast companies to "protect business models and erect pay walls".  That said, the US Copyright Office general counsel Jacqueline C Charlesworth, speaking at the American Bar Association’s Intellectual Property Law Conference in Washington, told delegates that the legal basis for Aereo’s antenna-based online television streaming service was“fundamentally incorrect”. According to Law360, Charlesworth said the “very important case” had implications far beyond the particular business model, that really goes to on-demand or interactive streaming services in general. “Taken to its logical extreme … it would threaten a lot of existing systems where content owners are receiving royalties”. With the apparent variety of opposing opinions already highlighted in the US judiciary, surely it is time to revisit Cablevision?  

Not a work of art ......

The Gujarat High Court has dismissed a criminal complaint alleging copyright infringement against a shop owner, Hasmukh Panchal, who dealt in duplicate parts of Hyundai cars. The Court held saying that automobile parts cannot be treated as works of art for which Copyright Act can be invoked. Whist Charges under sections 63 and 65 can be used for works including to painting, sculpture, drawing, and photographs and on works of literature, its not for car parts. 

Filmakerz.org, one of the websites that was targeted by the recent wide-ranging web block order against 45 websites linking to infringing material issued by the Public Prosecutor of Rome to ISPs - has won appeal before the Court Of Appeals in Rome. Appeal judges ordered the blockade against the video sharing site be lifted on the basis that the whole site blockade was too wide and resulted in legitimate content on the Filmakerz.org platform being blocked too. The appeals court also said that web-block injunctions should only be issued against sites which are clearly profiting from the infringement they commit or enable.

And Singapore is looking to introduce blocking orders against websites which blatantly infringe copyright in proposed changes to the Copyright Act - in a move to give rights holders more effective measures to act against sites which host pirated content. A public consultation on the proposed new laws is underway till 21 April. The Media Convergence Review Panel's 2012 recommended a multi-pronged approach to address online piracy, comprising (a) public education, (b) the promotion of legitimate digital content services, and (c) the adoption of appropriate regulatory measures. 

More from PIPCU. The City of London's  Police Intelligent Crime Property Unit, who are targeting one of the most torrented, streamed and illegally downloaded TV series of all time, Game of Thrones: just one episode in series 3  racked up 4,280,000 illegal downloads. As well as creating an "Infringing Website" list, officers are trying to replace advertising banners on illegal sites with a tailored message. Rights holders identified a total of 61 websites that provided unauthorised access to the show during its first episode of the new series. In response, PIPCU has sent deterrent notices to those domains, giving the sites the chance to remove the content. If a domain does not act in time, it seems PIPCU will contact advertisers and demand that all revenue to the infringing site be shut down.

A group of film studios including Twentieth Century Fox Film Corp., Disney Enterprises Inc., Paramount Pictures Corp., Universal City Studios Productions, Columbia Pictures Industries Inc. and Warner Bros. Entertainment Inc have filed a lawsuit in the U.S. District Court in Virginia against MegaUpload boss Kim Dotcom, Vester Limited, the majority shareholder of Megaupload Limited, Mathias Ortmann, the site's chief technical officer, and Bram van der Kolk, who oversaw programming. The suit alleged that the defendants encouraged and profited from copyright infringement of movies and television shows before they were indicted on federal criminal charges and Megaupload was shut down.


An interesting article in the Moscow Times from Elena Trusova (Goltsblat BLP, the Russian practice of Berwin Leighton Paisner) looking at how the new Russian "Anti-piracy law" is being used against Internet sites hosting illegal audiovisual works: there seem to have been more than a hundred applications against dozens of sites - the majority from Russian content owners rather than foreign firms, and the courts "frequently use quite a general wording to describe the measures applied to the defendant, such as: "desist from creating technical conditions allowing hosting, distribution and other use of a motion picture on a certain website". Elena explains that "This approach provides some freedom of action for both the plaintiff and Roskomnadzor, in charge of enforcing the ruling during the enforcement stage. In particular, on the basis of this wording, it is quite possible not only to block access to an individual link or separate page of web-site but also to the information source as a whole, if, for instance, all its contents are used for publishing illegal content or links thereto." You can click through to the article here . 

And finally a quick review of some interesting updates

The Prenda Law 'trolling' case: the appeal by three of the attorneys who were associated with Prenda, Steele Hansmeier PLLC and Alpha Law  goes from bad to worse as the oral hearing begins. More here .

Malibu Media: an adult film company also accused of trolling, has said that it will settle cases based on the outcome of a lie detector test. Documents filed in the Northern District of Illinois Federal Court say  "Malibu will dismiss its claims against any Defendant who agrees to and passes a polygraph administered by a licensed examiner of the Defendant's choosing". Malibu have “filed 268 cases within the Northern District of Illinois". More here. 

U.S. District Judge Henry Edward Autrey has awarded Warner Bros. $2.57 million for violations of their  copyrights in The Wizard of Oz, Gone with the Wind and the Tom and Jerry cartoon series by a number of 'collectibles' dealers who repeatedly infringed their copyrights - and submitted financial figures to the court which the judge clearly thought were unreliable at best. Judge Autrey said "This court finds statutory damages of $10,000.00 per infringement to be reasonable, considering: the factual history of this case, including defendants' failure to provide accurate records in order for plaintiffs to determine the profits made for the infringements; defendants' undisputed continued infringement after the initiation of this suit; the need for specific deterrence of the defendants' further copyright violations; the need for general deterrence for others who may consider engaging in copyright violations; and comparative awards of statutory damages by other federal district courts confronted with similar violations".More here.  

The CopyKat - The Bat is back

The Hollywood Reporter tells us that the Batmobile will roll into a federal appeals court  this summer - with James Bond, Godzilla and Freddy Krueger along for the ride. The 9th Circuit is poised to consider whether Batman's car is a "character" protectable under copyright law. Arguing against that idea is Mark Towle, a Temecula, Calif., mechanic who in 2011 was sued by Warner Bros.' DC Comics for selling replicas of Batmobiles from the 1960s TV show and 1989 film. Towle is appealing a February 2012 ruling that found him liable for infringement. He argues that the Batmobile is merely functional - a "useful article," a utilitarian rather than artistic object. If Warners win, it will be another useful tool to protect the $150 billion in annual worldwide merchandise sales alongside trade marks and passing off - similar to the successful argument used in the UK Courts in the 2011 Lucasfilm case concerning replica Stormtrooper helmets from the inconic Star Wars series of films.

The Ethiopian Intellectual Property Office has announced that 450 people have been arrested for violating copyright laws. Officials told media that the arrests were made based on the reports of various researchers. The clamp down reportedly covered several states of Ethiopia, including Addis Ababa. Reports indicate that 423 computers, 336 memory sticks and 35,000 CDs were recovered from the suspects. In Adama town, four large sized CD duplication machines and two sticker machines were reportedly recovered.

Aereo, the controversial Internet-based television service that was ordered shut down in Utah pending a court battle over copyright law, will be turning off its service in Utah and Denver next Saturday morning for an unknown length of time. In an email to Aereo customers, the company’s founder and CEO, Chet Kanojia, apologized and said the service will be shut off at 10.00 to comply with the order of U.S. District Court Judge Dale A. Kimball. An interesting debate on this on Bloomburg here.


In Hong Kong,  the debate about a new exception for parody moves forward:  A government spokesman said that parodies that include "altered works, playful or parodic in tone, and works that are unlikely to be a substitute for the original, regardless of whether they are more popular" would be considered for the exception but that the "public posting of performances of copyright works including singing with or without rewriting the lyrics and based on the original melodies may be in breach of the law."The spokesman said the subject of the critique may be the original or some other copyright work, or the creator himself. The critique may often be humorous, mocking, sarcastic, ironic or satirical and might include altered pictures, videos, posters, songs with lyrics rewritten on original melodies and kuso that intend to make a comment in response to current events, which are usually presented with a political context, will be exempted. "Posting of performances of copyright works including songs, or unauthorized posting of translation and adaptation works without any parodic, critique, comic or imitative effects, or not related to any current events, are not exempted as proposed."  The proposal will be discussed at the Legislative Council's commerce and industry panel meeting on Tuesday.

To draw attention to "broken" copyright law, the editor of a popular news site in Germany has turned the tables on a leading German political party. Sebastian Heiser,  news editor at popular Taz.de site took a photograph of Manfred Stolpe, a politician from the Social Democratic Party of Germany (SPD) back in 2005 and uploaded the shot under a creative commons licence. Finding the shot used without attribution by the SPD on two websites, he sent them a troll-style settlement demand - and received €,1800, which included legal fees of €1,104.

Now, before  I clock off .....

Time to face the music?

Danger - copyrighted ......

The iconic 1923 silent movie 'Safety Last!', which stars the late great Harold Lloyd in the romantic comedy, featuring one of the most iconic images from the era - Lloyd hanging perilously off a clock high above the broadwalk, is still in copyright - just - and a possible copy has now sparked a law suit - and some interesting information on how producers have protected the film:  Harold Lloyd Entertainment has now filed a copyright infringement lawsuit against Cupecoy Home Fashion Inc., which allegedly has been selling a clock that is "a direct appropriation of the iconic clock scene." According to the Hollywood Reporter "Interestingly, the lawsuit says that the plaintiff has licensed rights to make derivatives of this famous scene to other filmmakers: "The 1985 blockbuster Back to the Future licensed the rights to create a derivative version of the clock scene when it obtained permission from HLE to feature a scene where star Christopher Lloyd dangled perilously from the hands of a giant clock says the lawsuit and goes on to say 'Martin Scorsese's critically acclaimed children's movie Hugo licensed the rights to create a derivative version of the clock scene when it obtained permission from HLE to feature a scene where star Asa Butterfield dangled perilously from the hands of a giant clock' ".  The suit says HLE would have preferred to have settled the matter, but could not engage with the defendants.  Copy or not? You decide!

Breaking news - Aereo will go to the Supreme Court

It was confirmed on Friday that the U.S. Supreme Court will hear broadcasters’ challenges to “TV anywhere” startup Aereo. The case, against Aero, is being led by ABC but plaintiffs also include CBS, NBC, Fox and Disney Telemundo.  In 2012, U.S. District Judge Alison Nathan relied on the previous Cablevision case and refused to issue an injunction to halt Aereo. A split panel of the 2nd Circuit affirmed her decision, again relying on Cablevision, to say that Aereo's transmissions are not a public performance, concluding that:

"Aereo’s transmissions of unique copies of broadcast television programs created at its users’ requests and transmitted while the programs are still airing on broadcast television are not ‘public performances' of the Plaintiffs’ copyrighted works under Cablevision. As such, Plaintiffs have not demonstrated that they are likely to prevail on the merits on this claim in their copyright infringement action. Nor have they demonstrated serious questions as to the merits and a balance of hardships that tips decidedly in their favor. We therefore affirm the order of the district court denying the Plaintiffs’ motion."

As Iona commented in April 2013, it's interesting to compare this with the decision in TV CatchUp where the CJEU held that television broadcasters can prohibit the retransmission of their programmes by another company via the internet. In Cablevision (Cable News Network v CSC Holdings Inc., 08-448) the Supreme Court refused to block a new digital video recording (DVR) system that could make it even easier for viewers to bypass commercials


Aereo argues that it is not operating illegally. The company assigns its subscribers a remote antenna (the so called "rabbit ears"), which captures and streams local TV signals. After a delay of at least 6 seconds, it streams to the viewer. Aereo claims that the customer is therefor in control, as the rabbit ears act as a remote antenna for each subscriber, which makes similar to a private service -  like time-shifting on a VCR or DVR. 

Aereo has now raised an additional round of financing of $34 million for further expansion.

Aereo battles seem destined for the Supreme Court

Aereo, the controversial start-up that lets people watch TV on mobile devices for $8 a month,  via a mini antennae, has won a significant new court victory in Boston where a federal judge refused a broadcaster’s request to shut down the service.  Aereo offers the public a means to view broadcast TV over the internet, providing an alternative to expensive cable TV services and say all they do is enable people to access the airwaves with tiny TV antennas, and for this reason the company says they don't have to license broadcasts.

US District Judge Nathaniel Gorton refused to grant a temporary injunction to the broadcaster Hearst, which had argued that Aereo was rebroadcasting its Channel 5 signal without permission and infringing copyright, finding that Aereo did not appear to violate copyright because it's service is akin to a remote DVR service that lets subscribers watch and record private individual copies of the programs themselves - although the Judge did recognise the harm Aereo could cause to broadcasters with lost cable subscriptions but said “it seems more likely that the harm will take several years to materialize.” In April this year the 2nd US Circuit Court of Appeal held that Aereo's transmissions do not constitute a public performance concluding that:

"Aereo’s transmissions of unique copies of broadcast television programs created at its users’ requests and transmitted while the programs are still airing on broadcast television are not ‘public performances' of the Plaintiffs’ copyrighted works under Cablevision. As such, Plaintiffs have not demonstrated that they are likely to prevail on the merits on this claim in their copyright infringement action. Nor have they demonstrated serious questions as to the merits and a balance of hardships that tips decidedly in their favor. We therefore affirm the order of the district court denying the Plaintiffs’ motion."

However, that's not the end of the story: with conflicting judgements in California and the District of Columbia (where Aereo and fellow start up FilmOn remain unavailable) - with Circuit Judge Denny Chin's strident dissent to the 2nd Circuit's decision -  with a possible "split" in the appeal circuits - and with broadcasters saying that subscription revenue from cable companies is absolutely vital - it seems likely the Supreme Court will be asked to determine the matter.

To remind readers of Judge Chin's reasoning (with whom Circuit Judge Richard Wesley agreed) he would have reheard the case for four reasons:

- First, because the case raises “a question of exceptional importance” and because “en banc consideration is necessary to secure or maintain uniformity of the court’s decisions”

- Second, the text of the Copyright Act and its legislative history make clear that Aereo’s retransmissions are public performances.

- Third, Aereo’s reliance on Cablevision is misplaced because Cablevision was wrongly decided.

- Fourth even assuming Cablevision was correctly decided, Cablevision was misapplied and should not be extended to the circumstances Aereo’s business model.

And in early September, Judge Rosemary Collyer of the United States District Court for the District of Columbia issued a nationwide order blocking FilmOn (except the Second Circuit - New York, Connecticut and Vermont) indicating that she could see no meaningful difference between FilmOn’s retransmissions and those made by a traditional cable system - which clearly are deemed public performances under the US Copyright Act. And the broadcasters are not going to let this go: at the time of posting this blog came news that another lawsuit — this time in Utah — has been brought against Aereo. The copyright suit was filed by local TV stations and Fox Broadcasting Co again alleging that Aereo's re-transmissions of their programmes violate copyright.

As Iona reminded us back in April  - from a European perspective the New York and Boston decisions are also seemingly in conflict with the approach taken by the Court of Justice of the European Union in the TV Catchup case where it was held that television broadcasters may prohibit the retransmission of their programmes by another company via the internet and that retransmission constitutes, under certain conditions, ‘a communication to the public’ of works which must be authorised by the author. A vexed and commercially a very important question indeed for the Supreme Court.

Case C-607/11 ITV Broadcasting Ltd and Others v TVCatchup Ltd

WNET, Thirteen v. Aereo, Inc 2013 WL 1285591 (2nd.Cir.Apr, 1, 2013)

Cable News Network v CSC Holdings Inc., 08-448

There is a very good summary of the US battles on Lexology here

Copyright Law Creates Crazy Business Models

That’s not my headline, it's from a blog from Dan Mitchell on sfweekly.com, but it’s a good reflection of a still current theme running through cyberspace – particularly in light of what many perceive are conflicting decisions in the ReDigi case, and Kirtseang v John Wiley: One decision allowed the application of the ‘first use’ doctrine to the re-sale of textbooks legally brought in Asia and re-sold in in the USA with no infringement of copyright – and one which prohibited a business model based on re-selling ‘used’ MP3 files legally brought in the US and re-sold there. Add this a recent patent law decision that says that with patents, the law does NOT follow copyright as it is derived from the common law: in the Ninestar case the US Supreme Court held that “first sale” applied only to first sales made inside the US:  Many are baffled!

Then there is the recent Aereo decision (which Andy J referred in his comments on the ReDigi case and Iona blogged about yesterday), Meltwater and now another case from Australia on threats to a start up textbook rental business referred to below: It’s hardly surprising that consumers are confused, entrepreneurs frustrated and bloggers annoyed, and as one blogger says 

“Two recent court rulings exemplify the sometimes bizarre outcomes of a legal system that's often a couple of decades behind technology. No matter where you stand on copyright issues, you can't deny that the law as it stands is dysfunctional when it comes to dealing with the fact that owning a "copy" of something -- a song, a video -- means something completely different than it did when copies were attached to physical media -- a CD, a DVD.”

What we have are sets of what seem to be very very complex rules: the above cases, and and other decisions probably make little sense to the 'reasonable' or perhaps 'reasonably computer literate' man or woman, and also create a web of challenges for new market entrants. Eleonora has been busy blogging from the Fordham  IP Conference in New York, and commented that in the US the current legislative framework is perceived as outdated: the Copyright Act was adopted in 1976 (but negotiated in the 1960s) and the Digital Millennium Copyright Act (DMCA) is already a teen-ager, being 15-year-old. In particular, duration of copyright and the set of exceptions and limitations should be revised, with the US Register of Copyrights Maria Pallante saying that copyright is becoming increasingly unreadable and the result is that it is difficult for people to understand how it works (and sometimes even its rationale), adding that this impairs both the operation and reputation of copyright law.

Let's look at the Aereo case: Aereo streams local TV broadcasts over the Internet, has little TV antennas in its server room, which it rents to subscribers for $1 a day or $80 a year. Each stream is of a unique, independent file of a TV show that's not shared by anyone else. Aereo creates a new file for every user, which, it says, gets the company around the broadcasters' copyrights that disallow "public performance". The U.S. Court of Appeals in New York has now declined to overturn a lower court's denial of a preliminary injunction that would have put New York-based Aereo out of business, following a 2008 decision that favoured Cablevison. But a room full of little antennae? Just to get round copyright law? Sounds mad doesn’t it? But there again, its not mad but necessary, because as we know, Judge Richard Sullivan in New York looked at ReDigi’s business model and decided that said “The novel question presented in this action is whether a digital music file, lawfully made and purchased, may be resold by its owner through ReDigi under the first sale doctrine. The court determines that it cannot" although Judge Sullivan added the case represented a "fundamental clash over culture, policy and copyright law."

The final case is the recent threat of legal action against Zookal, an Australian company started two years ago to save students money by renting them textbooks. The CEO of the Australian Publishers Association Maree McCaskill said she has now notified the APA's lawyers of alleged copyright breaches by Zookal with action to follow. Zookal said that leading law and business textbook supplier Thomson Reuters ''outright told us will not supply a textbook renter company at all'' and that other publishers refused to supply the books to Zookal at wholesale prices or did so on terms less favourable than those given to other textbook retailers. These included shipping terms of six weeks instead of 24 hours.

It’s worth repeating Andy J’s comments on the ReDigi blog on this site:

“Cases like this one, 'Meltwater III' and Aereo's recent victory (also within the Second Circuit) are really stretching the current law's ability to accommodate digital technology within statutes which were fundamentally drafted before the internet was born. That means judges are making a lot of law on the hoof. That is not to criticise Judge Sullivan in this case. It is hard to fault his analysis, even if the outcome appears perverse to many who think they own their digital downloads, when in fact they merely have licences to use them under strictly constrained conditions.”

A good comment. And it seems many at the Fordham IP conference agree, and back in the blogsphere, Dan Mitchell says this 

“The law as written tends to apply to such physical media, even as the world is swiftly consuming its media online, where an infinite number of copies of such media can be easily created and shared. That has led to the creation of some weird business models that in some cases make "no technological sense whatsoever," as Techdirt's Mike Masnick puts it in one case, and exist only because the law is so inadequate. How to deal with a world of limitless copies is more than just a legal or economic question, but poses "metaphysical quandaries," says Variety's Andrew Barker."

Mitchell adds 

“The three-person appeals panel's lone dissenter was absolutely right in his characterization of Aereo as "a Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law." The other two judges, though, didn't see it as a "perceived loophole," but rather simply .... the law.

Many years ago when the digital age was beginning (OK, not that many years ago) I remember having to explain to a senior record label executive that actually even making even a single copy of a CD for personal use, by way of format shifting, was technically an infringement of copyright here in the UK. He was amazed! And baffled. And he made his money out of selling CDs! Prohibition of alcohol in the US in the 1920s merely drove almost all legitimate suppliers out of business, and allowed organised crime to consolidate control and profitability.  A nonsensical set of rules governing copyright isn't going to help many - except those who see a profit in playing the system - and a lack of respect of the law really is a poor starting point for any system of governance  - especially one within which new business models.have to try to function.

http://www.smh.com.au/small-business/entrepreneur/copyright-clash-over-textbook-rentals-20130402-2h4si.html

http://blogs.sfweekly.com/thesnitch/2013/04/copyright_law_creates_crazy_bu.php

Dan Gillmor's reflections on ReDigi case on the Guardian website here http://www.guardian.co.uk/commentisfree/2013/apr/05/digital-media-licensed-not-owned

More on nonsensical laws here (completely unverified by the 1709 blog I may add)  http://www.stupidlaws.com/

Aereo: retransmission not a "public performance" in the US

An Easter decision:
rabbit ears antenna do not infringe copyright

Further to Ben's post almost a month ago reporting that a group of US broadcasters had sued new start up television company Aereo, comes the news that the 2nd US Circuit Court of Appeal has held that Aereo's transmissions do not constitute a public performance.

Aereo transmits television broadcasts to users' mobile phones, computers and iPads via individual mini antenna or "rabbit ears". It positions itself as a cheaper alternative to cable and satellite, though it offers far fewer channels, since it only retransmits broadcasts which are freely available to any users with an antenna (except Bloomberg TV which has reached a deal with Aereo).

A group of television broadcasters, including ABC, CBS, NBC, Fox, Disney Telemundo and the local PBS station, filed suits in the federal court saying Aereo's service used their content without permission. An injunction was denied at first instance. The Court of Appeal upheld that ruling, relying on Cablevision  to say that Aereo's transmissions are not a public performance, concluding that:

"Aereo’s transmissions of unique copies of broadcast television programs created at its users’ requests and transmitted while the programs are still airing on broadcast television are not ‘public performances' of the Plaintiffs’ copyrighted works under Cablevision. As such, Plaintiffs have not demonstrated that they are likely to prevail on the merits on this claim in their copyright infringement action. Nor have they demonstrated serious questions as to the merits and a balance of hardships that tips decidedly in their favor. We therefore affirm the order of the district court denying the Plaintiffs’ motion."

It was key to the Court of Appeal's finding that Aereo subscribers are assigned their own tiny antennas at Aereo's data center, making each retransmission a private performance rather than a public one. Dissenting Judge Denny Chin said that Aereo violates the Copyright Act and called these tiny antennas a "sham", saying that Aereo's set up is "over-engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law."

The television broadcasters may yet appeal this decision to the Supreme Court.

Compare this with the decision in TV CatchUp where the CJEU held that television broadcasters can prohibit the retransmission of their programmes by another company via the internet.

A copy of the decision is available, courtesy of EFF, here.

Aereo's press release is available here.

Aereo barred?

OK, a cheap pun at the expense of chocolate bars, but it seems US broadcasters are less than impressed with new start up TV company Aereo, which aims to stream television programmes to users' mobile phones, computers and iPads in the New York Area.

Two groups of broadcasters have now sued the startup, which was founded by Chet Kanojia and is backed by media billionaire Barry Diller, and which sends live local TV feeds to iPhones and iPads and other web enabled devices in the New York area. The Wall Street Journal reports that the broadcasters, including ABC, CBS, NBC, Fox, Disney Telemundo and the local PBS station, have filed suits in the federal court, saying Aereo Inc.'s service uses their content without permission.

Aereo launched two weeks ago, but it's available by invitation only. Subscribers pay $12 per month for access to 27 locally broadcast TV channels through the Web browsers on their Apple devices. It's set to open up to more subscribers on March 14th with advertising saying "Television on Your Terms. Watch Live TV All the broadcasts - NBC, ABC, CBS, PBS, FOX, ...". The company hopes to expand service to other cities.

Aereo says the suits are groundless and it looks forward to "a full and fair airing of the issues" and explains that its business exploits what it believes is a loophole in the laws governing retransmission of local broadcasts because it doesn't use one big antenna to pick up the local broadcasts and relay them to the Internet. Instead, "it uses one tiny antenna for each subscriber that's watching", acting as a remote antenna for each subscriber, rather than taking broadcasts and retransmitting them the company says it has installed sufficient racks of "rabbit ears" antennae in NYC to ensure there is a set available at any given time for every subscriber. The broadcasters disagree saying the retransmission of their services is "unlawful".

see more on Aereo at https://aereo.com/features and http://www.pcmag.com/article2/0,2817,2401069,00.asp (the aereo.com website seems to take a VERY log time to load).

For your very own rabbit ears, see Shona Heath's (illustrated above) here http://showstudio.com/shop/product/bunny_ears