On May 16, 2014 the Copyright Board released its decision certifying Re: Sound Tariff 8 setting royalty rates for webcasting services in Canada. Re:Sound promptly filed an application for judicial review of the decision, calling it a “significant outlier in the world” that “greatly disadvantages the Canadian music industry in the globalized market place.” Re:Sound’s application was met with a blizzard of support when 70 music organizations released a joint statement publically denouncing the Copyright Board decision. They called it “a serious setback for the music community in Canada” and “for artists and the music companies who invest in their careers”.
Archive for the ‘public perofmance’ category
The Supreme Court of the United States ruled in a 6 to 3 opinion yesterday that Aereo’s Internet retransmission service infringes copyright. Aereo had tried to architect its television restransmission system to avoid paying copyright royalties or license fees by “renting” dime sized antennae to subscribers. Judge Chin of the US Second Circuit Court of Appeals had called Aereo’s service “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.” In American Broadcasting Cos. v. Aereo, Inc., the SCOTUS agreed telling Aereo essentially, it looked like a cable retransmitter, it acted like a cable retransmitter, Congress had specifically amended the Copyright Act to ensure that cable retransmitters publically performed when they delivered programming to subscribers, and that Aereo’s service was indistinguishable in any meaningful way from those services.
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.
Aereo’s business model of re-transmitting TV broadcasts without a license infringes copyright and should be shut down. Its business model is a “sham” designed to capitalize on perceived loopholes in the US Copyright Act. This was the opinion of Circuit Judge Chin in his dissent in WNET, Thirteen v. Aereo, Inc 2013 WL 1285591 (2nd.Cir.Apr, 1, 2013). He re-iterated these same views in a scathing dissenting opinion disagreeing with his brethren in the Second Circuit who denied a motion to re-hear the case en banc.
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 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.”
The five copyright decisions released by the Supreme Court of Canada just over a week ago are bound to influence copyright cases for a long time. Nowhere is this more likely than in future proceedings before the Copyright Board which was the source of all of the appeals in the first instance.
The Supreme Court decisions will clearly be relevant in follow on tariffs to those that were the subject of the appeals such as SOCAN Tariff 22.A (online music services) and Tariff 22G (game sites) and the Access Copyright Educational Institutions tariff.
Earlier today, the Supreme Court released reasons in the five copyright appeals heard back to back on December 6 and 7, 2011 in the following cases:[i]
- Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34 (ESA v SOCAN)
- Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35 (Rogers v SOCAN)
- Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2012 SCC 36 (SOCAN v Bell)
- Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37 (Access Copyright)
- Re:Sound v. Motion Picture Theatre Associations of Canada, 2012 SCC 38 (RE:Sound)