Earlier today, a number of international and foreign associations and copyright scholars filed an Amicus brief in the Supreme Court of the United States in the ABC, Inc. et al v. Aereo, Inc case. The brief brings to the attention of the SCOTUS a number of international treaties and trade agreements respecting copyright that impose obligations on the United States to provide copyright holders with a broad technologically neutral communication to the public right that would cover all aspects of Aereo’s service and make its service infringing.
Archive for the ‘communication to the public’ category
The England High Court recently made an order requiring ISPs to block two linking websites located at www.solarmovie.so (“SolarMovie”) and www.tubeplus.me (“TubePlus”). In doing so, the court in Paramount Home Entertainment International Ltd & Ors v British Sky Broadcasting Ltd & Ors  EWHC 3479 (Ch) (13 November 2013) ruled that the sites, which did not themselves host any content, were nevertheless liable for infringement because they facilitated streaming of content to users by hosting and organizing hyperlinks to the content without consent of copyright owners.
The nature of the sites in issue (the “Websites”) were describe by Justice Arnold as follows:
The annual Fordham IP law conference is, in my view, second to none. This year”s Fordham’s 21st Annual Conference on Intellectual Property Law and Policy was sensational. Great program and fabulous international faculty. IPkat reported on some of the sessions.
On Friday, I was on a panel Performance Rights in Copyright: Public, Private or “Digital”? The speakers and panelists with me were Profs. Tyler Ochoa (Santa Clara U. School of Law) and Jane Ginsburg (Columbia), David Ellen (GC Cablevision), Dr. Silke von Lewinski (Max Planck Institute for IP) and Janet Cullum (Cooley). It was a very timely panel, especially given the recent release of the opinion in WNET, Thirteen v. Aereo, Inc 2013 WL 1285591 (2nd.Cir.Apr, 1, 2013). Judge Chin who delivered the powerful dissent in the Aereo case was in the audience.
The Second Circuit released an important opinion yesterday ruling that Aereo’s New York based Internet streaming service does not infringe the US public performance right. In WNET, Thirteen v. Aereo, Inc 2013 WL 1285591 (2nd.Cir.Apr, 1, 2013), by a two to one majority, the Court ruled that the technical architecture of the service which is based on “renting” mini-antennas and transcoders to members of the public that are used to stream over the air live broadcasts renders the service non-infringing.
Central to the Court’s ruling was it prior decision in the Cablevision case which according to the Court established the following: .
The European Court of Justice ruled yesterday that retransmitting broadcasts over the internet infringes the communication to the public right, if done without authorization. The case involved TV Catchup Limited which operated an internet based live streaming service of broadcast television programmes.
The UK High Court in ITV Broadcasting Ltd & Ors v TV Catchup Ltd  EWHC 1874 (Pat) (18 July 2011) referred the case to the EU Court of Justice (the CJEU). The case involved answering two questions. First, whether grabbing the over the air broadcasts and retransmitting them over the Internet was a communication. Secondly, whether the transmissions were “to the public”. The court in Case C‑607/11 found both requirmeents were met.
Yesterday, I gave a talk at the Law Society of Upper Canada’s 17h Annual Intellectual Property Law: The Year in Review program. My talk canvassed developments in copyright in Canada and around the world in 2012. My slides are shown below. The associated paper prepared in collaboration with Glen Bloom, with the help of others, is available here.
The following copyright cases from Canada, the USA, UK and Ireland, Australia, and Europe are dealt with in the paper and slides.
Aga Khan v. Tajdin, 2012 FCA 12
In the ESA v. SOCAN, 2012 SCC 34 case, the Supreme Court decided by a 5 to 4 majority that the transmission of a copy of a musical work to members of the public is not a communication to the public within the meaning of Section 3(1)(f) of the Copyright Act. When the Copyright Modernization Act was enacted the communication to the public right was expanded to expressly confer on copyright holders making available rights required by the WIPO Treaties. This was accomplished, inter alia, by the inclusion of Section 2.4(1.1) which provides that:
Yesterday, Rogers, Telus, Bell and Quebecor commenced an action against the copyright collective SOCAN. In the Federal Court suit Canada’s leading carriers are claiming a refund of all royalties paid to SOCAN under its Tariff 24 (Ringtone) tariffs since November, 2006.
The Second Circuit Court of Appeals released its decision in the WPIX, INC., v ivi INC. 2012 WL 3645304, (2nd.Cir.Aug. 27, 2012) case yesterday. It dismissed ivi’s appeal from a preliminary injunction prohibiting Ivi from continuing to stream television programming over the Internet.
ivi’s defense was that it was a cable system entitled to a compulsory license under § 111 of the US Copyright Act. The US Second Circuit reviewed the statute’s legislative history, development, and purpose which indicated that Congress did not intend for § 111 licenses to extend to Internet retransmissions. This was consistent with the view of US Copyright Office’s interpretation of § 111 that Internet retransmission services do not constitute cable systems under § 111. The Court accordingly concluded that “the district court did not abuse its discretion in finding that plaintiffs were likely to succeed on the merits of the case.”