Copyright Law Ronald W. Staudt

Class 25November 21, 2013

NFL, Viacom, Unions Rip Aereo At High CourtLaw360, New York (November 19, 2013, 4:40 PM ET) --

A chorus of major sports leagues, media conglomerates, labor unions, legal scholars and others urged the U.S. Supreme Court last week to consider shutting down Aereo Inc., warning that a lower court ruling declaring the online service was legal threatened the basic rules of copyright law.

In seven amicus briefs filed in support of a petition for certiorari from the nation's major broadcast networks, a formidable lineup of powerful voices told the justices in varying ways that they should overturn an April ruling by the Second Circuit in which the court refused to shutter Aereo.

In that decision, the appeals court said that Aereo was merely “privately performing” copyrighted television content — and thus not infringing it — because of its quirky system of  tiny antennae that retransmit individual broadcast television signals directly to individual Internet users.

In one amicus brief, the National Football League and Major League Baseball said the Second Circuit's interpretation “cannot be squared with the language, structure and legislative intent of the Copyright Act” and threatened to force them to take all of their popular content to pay-TV channels.

ABC Urges 2nd Circ. To Shut Down Dish's 'Hopper' DVRBy Bill Donahue

Law360, New York (November 20, 2013, 3:43 PM ET)

ABC Inc. pressed the Second Circuit on Wednesday to shut down Dish Network Corp.'s ad-skipping DVR service called the Hopper, saying a lower court ruling that allowed it to keep operating rode roughshod over copyright case law.

The big broadcasters are in infringement battles in both New York and California over the Hopper, which lets viewers record entire prime time blocks on all four networks and then automatically remove ads before watching.

They're 0 for 2, though, in their bids for preliminary injunctions to shut down the service, and both cases are now before appeals courts. In the New York case, U.S. District Judge Laura Taylor Swain ruled in September that consumers — not Dish — were making the copies, and that they were allowed to do so as fair use time shifting.

In its opening appeals brief filed Wednesday, ABC said the ruling was rooted in several misinterpretations of copyright precedent, such as an “unwarranted extension” of the Second Circuit's landmark Cablevision ruling in 2008.

Recap: Fair Use and New Types of Copying and Dissemination

Digital copying by commercial intermediaries UMG v. MP3.com – unfair Perfect 10 v. Amazon – Google thumbnails fair Authors Guild v. Google – Book Project fair

Copying by End Users Sony- home time shifting of broadcast TV –fair Fox- hopper ad skipping feature- fair Napster- home downloads and posting of music-

unfair BMG v. Gonzalez- home download and retention

of 30 songs- unfair

Vicarious and Contributory Infringement

Fonovisa v. Cherry Auction

Perfect 10 v. Visa

Fonovisa v. Cherry Auction

FACTS- Fresno swap meet-fees, parking, ads, right to exclude, customer fees, knowledge of pirate sales…

No statutory basis for indirect liability but Sony quote…

Vicarious• Control (right and ability to supervise) and

direct financial benefit

• District court v. appellate court- landlord or dancehall

Contributory• Knowledge of infringing activity and

“induces, causes or materially contributes…”

• Renting space or providing range of services and promotion

Perfect 10 v. Visa- factsPerfect 10 alleges that numerous websites based in several countries have stolen its

proprietary images, altered them, and illegally offered them for sale online.

Instead of suing the direct infringers in this case, Perfect 10 sued Defendants, financial institutions that process certain credit card payments to the allegedly infringing websites.

The Visa and MasterCard entities are associations of member banks that issue credit cards to consumers, automatically process payments to merchants authorized to accept their cards, and provide information to the interested parties necessary to settle the resulting debits and credits. Defendants collect fees for their services in these transactions.

Perfect 10 alleges that it sent Defendants repeated notices specifically identifying infringing websites and informing Defendants that some of their consumers use their payment cards to purchase infringing images. Defendants admit receiving some of these notices, but they took no action in response to the notices after receiving them.

Perfect 10 v. Visa

Are banks liable for contributory infringement? Knowledge of direct infringement? Material contribution, inducement or

causation?Are banks liable for vicarious infringement?

Right and ability to supervise the infringing activity?

Dissent?

Perfect 10 v. Visa

Contributory Infringement Language of the tests is quite broad but to

extend to D’s activities would be a radical and inappropriate expansion… and violate U.S. public policy!! Wow!Distinguish Google in Perfect 10 v. Amazon

• Location services v. payment services• Site and facilities?? Electric companies?• No infringing material passes over D’s network and

D’s payment network not “designed or promoted” as a means to infringe

Perfect 10 v. Visa

Vicarious Infringement Ability to withdraw a financial carrot

does not create the stick of “right and ability to control”---compare Google where ct rejected vicarious liabilty

Not like Napster or Fonovision which controlled actual distribution, like Google which affects but does not supervise or control infringement

Perfect 10 v. Visa-dissent Contributory Infringement

Alternate means not issue- “The majority makes some very new– and very bad– law here.”

Landlords and dance halls—key here is materiality

Vicarious InfringementDon’t need the ability to kill the businessDon’t need “absolute right to stop” just the practical ability Special rules and practices

Questions p. 954