Copyright Law
Ronald W. Staudt
Class 25
November 21, 2013
NFL, Viacom, Unions Rip Aereo At High Court
Law360, 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' DVR
By 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 courtlandlord 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- facts
Perfect 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 Infringement
Don’t need the ability to kill the business
Don’t need “absolute right to stop” just the practical ability
Special rules and practices
Questions p. 954