2014 Issue Watch
Supreme Court Rules Against Aereo
In a big win for broadcasters, the Supreme Court has reversed a lower court ruling denying broadcasters' injunction against internet service Aereo.
That came in an opinion released Wednesday (June 25), according to SCOTUSblog.
The decision was 6-3, with Justice Breyer delivering the opinion. Justices Antonin Scalia, Clarence Thomas and Samuel Alito dissented.
“Today’s decision is a victory for consumers,” said Paul Clement, an attorney for broadcasters in the appeal. “The Court has sent a clear message that it will uphold the letter and spirit of the law just as Congress intended.”
“We’re gratified the Court upheld important Copyright principles that help ensure that the high-quality creative content consumers expect and demand is protected and incentivized,” ABC parent Disney said. ABC was the lead broadcaster in the appeal
The court ruled that Aereo provides a public performance, not a private one, as Aereo had asserted. "The statute makes clear that the fact that Aereo’s subscribers may receive the same programs at different times and locations is of no consequence. Aereo transmits a performance of petitioners’ works “to the public,”Breyer wrote for the majority.
The court went out of its way to say that the ruling was a narrow one that should not discourage technological innovation.
“We must decide whether respondent Aereo, Inc., infringes this exclusive right [of public performance] by selling its subscribers a technologically complex service that allows them to watch television programs over the Internet at about the same time as the programs are broadcast over the air,” said the court. “We conclude that it does.” » Read More
Federal Agency Cancels Redskins Trademark Registration, Says Name Is Disparaging
The United States Patent and Trademark Office has canceled the Washington Redskins trademark registration, calling the football team’s name “disparaging to Native Americans.”
The landmark case, which appeared before the Trademark Trial and Appeal Board, was filed on behalf of five Native Americans. It was the second time such a case was filed.
“This victory was a long time coming and reflects the hard work of many attorneys at our firm,” said lead attorney Jesse Witten, of Drinker Biddle & Reath.
Federal trademark law does not permit registration of trademarks that “may disparage” individuals or groups or “bring them into contempt or disrepute.” The ruling pertains to six different trademarks associated with the team, each containing the word “Redskin.”
“We are extraordinarily gratified to have prevailed in this case,” Alfred Putnam Jr., the chairman of Drinker Biddle & Reath, said. “The dedication and professionalism of our attorneys and the determination of our clients have resulted in a milestone victory that will serve as an historic precedent.”
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How the Supreme Court’s Ruling on Aereo Could Change How We Watch Football
With the Supreme Court poised to rule on a case that could shape the future of television, the justices are navigating everything from copyright law to cloud computing. And then there’s football.
National Football League games have become some of the most popular programming on television; last fall, 34 of the 35 most-watched TV shows were NFL games. But the league tightly controls its games, collecting hefty fees from broadcasters, cable and satellite companies. If you’re a football fan who wants to watch games live-streamed to your device, good luck finding a way without paying for cable or satellite.
Now, the court is reviewing a challenge by broadcasters who say an upstart tech firm, Aereo, is getting their content without paying when it uses tiny antennas to lift live television broadcasts from the airwaves of local stations. Aereo then streams these broadcasts to its subscribers, charging much less than cable companies.
If Aereo prevails in the ruling, which could come as soon as Thursday, the foundation of the NFL’s television business could crumble. The league has already signed billions of dollars worth of contracts with broadcasters and cable companies for the rights to air its games for the next seven years. But a thriving Aereo could help fans bypass the broadcasters, devaluing their expensive contracts with the NFL. » Read More
Democrats Unveil Legislation Forcing the FCC To Ban Internet Fast Lanes
Democratic lawmakers will unveil a piece of bicameral legislation Tuesday that would force the Federal Communications Commission to ban fast lanes on the Internet.
The proposal, put forward by Senate Judiciary Committee chair Patrick Leahy (D-Vt.) and Rep. Doris Matsui (D-Calif.), requires the FCC to use whatever authority it sees fit to make sure that Internet providers don't speed up certain types of content (like Netflix videos) at the expense of others (like e-mail). It wouldn't give the commission new powers, but the bill — known as the Online Competition and Consumer Choice Act — would give the FCC crucial political cover to prohibit what consumer advocates say would harm startup companies and Internet services by requiring them to pay extra fees to ISPs.
"Americans are speaking loud and clear," said Leahy, who is holding a hearing on net neutrality in Vermont this summer. "They want an Internet that is a platform for free expression and innovation, where the best ideas and services can reach consumers based on merit rather than based on a financial relationship with a broadband provider." » Read More
Supreme Court Refuses To Take Reporter's Case on Revealing Confidential Source
The Supreme Court declined Monday to intervene on behalf of a New York Times reporter who has been subpoenaed and could face jail time for not identifying a confidential source.
The court turned down requests from reporter James Risen and a host of media organizations, including The Washington Post, that it overturn a lower court’s order and find that reporters are protected by the Constitution from testifying about their sources. The justices offered no reason for turning down the case.
Federal prosecutors want Risen to testify in the case of Jeffrey A. Sterling, a former CIA analyst who they believe gave Risen information for his book “State of War: The Secret History of the CIA and the Bush Administration.” In that 2006 book, Risen detailed classified information about the CIA’s efforts to disrupt Iran’s nuclear program. » Read More
FCC Launches Open Internet Rules, Take Two
With occasional interruptions from protestors in the room, the FCC commissioners voted Thursday on proposed new open Internet rules that would use Sec. 706 authority to revive open Internet rules.
The vote was two for, Wheeler and commissioner Mignon Clyburn, two against, Republican commissioners Ajit Pai and Michael O'Rielly, and Democrat Jessica Rosenworcel concurring.
FCC chairman Tom Wheeler made it clear the vote on the rule proposal was the beginning of a process, and that it was in response to a court remand and an effort to restore legally sustainable rules.
He also said nothing in the proposed new rules necessarily allows paid priority.
While it was take two, it was not Title II, though the FCC asked whether and how to reclassify if it concludes that is the better way to go. Wheeler said Title II was still on the table.
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In Google Case, E.U. Court Says People Are Entitled To Control Their Own Online Histories
Europe’s highest court on Tuesday stunned the U.S. tech industry by recognizing an expansive right to privacy that allows citizens to demand that Google delete links to embarrassing personal information – even if it’s true.
The ruling has potentially wide-ranging consequences for an industry that reaps billions of dollars in profit by collecting, sorting and redistributing data touching on the lives of people worldwide. That includes more than 500 million people in the European Union who now could unleash a flood of deletion requests that Google would have little choice but to fulfill, no matter how cumbersome.
The impact on American users was not immediately clear, though companies sometimes seek to adopt uniform policies around the world to simplify compliance…. » Read More
Net Neutrality Forces Slam FCC Draft Proposal
The FCC continued to get hammered Thursday by groups saying a draft network neutrality proposal that would allow for paid priority access to broadband consumers business model, under various limitation, was a threat to the Open Internet. While FCC Chairman Tom Wheeler has said that is not the case, period, there are a bunch of nonbelievers.
“Under this terribly misguided proposal, the Internet as we have come to know it would cease to exist and the average American would be the big loser," said Sen Bernie Sanders (I-Vt.). "We must not let private corporations turn bigger and bigger profits by putting a price tag on the free flow of ideas." » Read More
Justices Test Aereo on Copyright Issue but Raise Concern About Harming Cloud Services
Several Supreme Court justices appeared skeptical of Internet streaming start-up Aereo during oral arguments Tuesday, questioning whether the company was created as a technical work-around of copyright laws to bypass license payments.
But justices also raised concerns that a decision siding with television broadcasters’ complaint could have far-reaching effects on new Web cloud technologies, sweeping up services such as Dropbox and Apple’s iCloud into any fresh interpretations of 40-year-old copyright laws.
“What disturbs me on the other side is I don’t understand what the decision for you or against you when I write it is going to do to all kinds of other technologies,” Justice Stephen Breyer told David Frederick, an attorney for Aereo.
In a little more than an hour of questioning, the justices delved into highly technical arguments about Aereo’s technology and business model. The two-year-old private firm uses thousands of tiny antennas, each the size of a dime, to capture programs off the airwaves and record them for consumers to view on smartphones, tablets and laptops.
But the company doesn’t pay broadcasters licensing fees, and the question at the heart of the Supreme Court case is whether the company’s use of individually assigned antennas is akin to a consumer’s right to use rabbit-ear antennas to watch broadcast TV for free.
Aereo, which charges subscribers $8 a month for its service, has used that argument in its legal defense. It says it merely rents out antennas and recorders that consumers control remotely from their homes. But every major broadcaster, including ABC, CBS, NBC and Fox, says the firm is no different from a cable, satellite or online licensing partner such as Hulu or Netflix that is obligated to pay for the right to rebroadcast the networks’ copyrighted material…. » Read More
Commerce DMCA Meeting Looks To Tackle Standardized Takedowns First
The Obama Administration Thursday launched its latest multistakeholder process on standards and best practices for improving the notice and takedown system for infringing Internet content. The goal is to come up with voluntary standards and avoid the scorched earth debate that took down the SOPA/PIPA legislation in 2013.
Thursday's day-long meeting, which was overseen by the Department of Commerce and hosted by the U.S. Patent and Trademark Office, appeared to find common ground on the need to focus on one issue rather than tackle several at once. That issue was a standardized template for the notice and takedown regime under the Digital Millennium Copyright Act (DMCA), which is the way content rights holders and ISPs inform Web users of allegedly infringing content.
A representative of the Motion Picture Association of America agreed that standardized templates was a good topic to start with. He also said that the focus should be on a process that was effective, not just efficient. He said the point is not to generate millions of notices, but to cut down on the need for them by cutting down on infringement. He also weighed in on one of the other issues on the table, one that will likely be more contentious: abusive or incorrect notices. He suggested that such notices are actually a "minuscule" percentage and should not take up resources disproportionate to their impact.
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Google and Viacom Settle YouTube Lawsuit
Google and Viacom settled a copyright lawsuit filed by the media giant related to content hosted on the video service YouTube. In a joint statement released Tuesday, both companies say they resolved a lawsuit filed by Viacom in 2007 over copyrighted content from networks including Comedy Central and MTV. No financial terms were disclosed.
"This settlement reflects the growing collaborative dialogue between our two companies on important opportunities, and we look forward to working more closely together," reads a joint statement from both parties.
Viacom filed its lawsuit against Google in 2007 -- one year after Google acquired YouTube -- seeking $1 billion, claiming the tech titan showed "brazen disregard" for demands it remove content owned by Viacom.
In 2010, a judge threw out Viacom's lawsuit, claiming YouTube could not be held responsible when its users post clips from Viacom programs. Last year, Viacom's lawsuit was tossed a second time by a federal judge, saying YouTube is not liable so long as it removes infringing videos from copyright owners.
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FCC Is Pulling Plug on CIN Study
“The FCC will not move forward with the Critical Information Needs study," an FCC spokesman said Friday. "The Commission will reassess the best way to fulfill its obligation to Congress to identify barriers to entry into the communications marketplace faced by entrepreneurs and other small businesses.”
The study had drawn criticism for plans to interview journalists over why they covered what they covered. FCC chairman Tom Wheeler suspended the study earlier in the week, at least until the methodology could be changed to scrub questions to journalists and media owners, but utlimately it appears to have been unsalvageable.... » Read More
Democratic Lawmakers Want To Bring Net Neutrality
Back to Life
Democrats in Congress have introduced a bill that would restore Net neutrality regulations, less than a month after a court decision struck them down. U.S. Rep. Henry Waxman, D-Calif., is among the legislators who back efforts to restore Net neutrality regulations,
"It basically says, 'Remember the court decision from a couple of weeks ago? Forget about that,'" John Bergmayer, senior staff attorney at Internet freedom advocacy group Public Knowledge, told NBC News. "Right now there are no rules in place. This is basically saying, while the FCC is making up its mind, the previous rules are in place."
Reps. Anna Eshoo and Henry Waxman, both D-Calif., introduced the Open Internet Preservation Act in the House, while Sen. Edward Markey, D-Mass., introduced a companion bill in the Senate.
“The Internet is an engine of economic growth because it has always been an open platform for competition and innovation,” Waxman said in a statement. “Our bill very simply ensures that consumers can continue to access the content and applications of their choosing online."
If passed, the legislation would require that broadband providers treat all Internet traffic equally. That is how it worked before Jan. 14, when a U.S. appeals court ruled that the Federal Communications Commission couldn't impose Net neutrality regulations because it classified broadband providers more like Google than a telephone or power company. » Read More
Court Vacates Heart of FCC Open Internet Order
A three-judge panel of the U.S. Court of Appeals for the District of Columbia has unanimously vacated much of the FCC's Open Internet order and remanded it back to the FCC.
"[A]lthough we reject Verizon’s challenge to the Open Internet Order’s disclosure rules, we vacate both the anti-discrimination and the anti-blocking rules. The agency’s decision is so deficient as to raise serious doubts whether the agency can adequately justify its decision at all," said the court. "We remand the case to the Commission for further proceedings consistent with this opinion."
The court said the FCC has the authority to "promulgate rules governing broadband providers’ treatment of Internet traffic," and says that its "justification for the specific rules at issue here – that they will preserve and facilitate the “virtuous circle” of innovation that has driven the explosive growth of the Internet – is reasonable and supported by substantial evidence."
But it concluded that because the FCC has not classified ISPs as common carriers, it cannot regulate them as though they were. » Read More
Supreme Court To Hear Aereo Appeal
The Supreme Court has agreed to hear broadcasters appeal of the denial of its injunction request against Aereo. The court held a conference Friday on what appeals to hear, and did not take long in making the decision.
"The petition for a writ of certiorari is granted," the court said without elaboration. Justice Samuel Alito took no part in the decision.
Aereo had joined broadcasters in saying the court should resolve the issue, which is whether it is simply providing remote access to TV station signals or is retransmitting a performance without compensation in violation of the copyright laws.
The Second Circuit Court of Appeals refused to grant an injunction and suggested Aereo was on solid legal footing. The case has yet to be decided in the lower courts, but broadcasters argue that the service should be blocked until that lower court decision is reached because it threatens their business.
So far, no other federal appeals court has weighed in, so there is no split in the federal circuit. But district courts have differed, and the Ninth and D.C. federal appeals courts have been asked to weigh in. » Read More
FCC Chairman Voices Clear but Cautious Support for Net Neutrality
Speaking at the 2014 Consumer Electronics Show, FCC Chairman Tom Wheeler offered cautious but clear support for Net neutrality.
When Consumer Electronics Assn. topper Gary Shapiro, who interviewed Wheeler onstage Wednesday, wondered if Net neutrality rules might become unnecessary, Wheeler framed the issue in terms of results, not rules, and warned the FCC would act if markets veered in directions that discourage competition and innovation.
"I've always — well, for 60 days," he quipped, noting his short time on the job, "I've been talking about what I call the regulatory seesaw. If there are good things happening the marketplace, if there is competition, then the commission doesn't have to do much. But it can (tilt) as well."
The current Open Internet Order, he said, "is designed to encourage competition, is designed to be different for wireless than from wire, and it makes it clear that if there are untoward things impacting things to the network, undermining innovation, then the commission should move." » Read More