Aereo legal for now in New York

April 2nd, 2013 by Barry Sookman No comments »

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: .

Wiretap intercept rules apply to mobile text messages says Supreme Court: R v TELUS

March 28th, 2013 by Barry Sookman No comments »

The Supreme Court decided yesterday that police are required to comply with Part VI of the Criminal Code if they want to secure the prospective and continuous production of text messages from a mobile carrier like TELUS. In R. v. TELUS Communications Co., 2013 SCC 16, the Court ruled that police cannot merely obtain a general warrant. Rather to obtain copies of text messages in these circumstances, they must obtain an intercept order and comply with the conditions needed to intercept voice communications.

A big week in copyright, Kirtsaeng, isoHunt, and Associated Press v Meltwater

March 25th, 2013 by Barry Sookman No comments »

Last week was a very eventful one in copyright law with three significant copyright rulings from US courts. The US Supreme Court ruled that importing genuine grey market works into the US does not infringe copyright. The Ninth Circuit affirmed a ruling that the Canadian bitTorrent site isoHunt is liable for contributory copyright infringement. Last, a US District Court ruled that Meltwater’s controversial electronic news clipping service is liable for copyright infringement and is not protected by fair use doctrine.

Managing Intellectual Property North America Awards

March 20th, 2013 by Barry Sookman 1 comment »

Last night I attended the Euromoney Legal Media Group’s Managing IP gala in Washington, DC. I was delighted to learn that my firm, McCarthy Tétrault, was honored with two of the 2013 North America Awards for excellence in intellectual property law.

McCarthy Tétrault was recognized as the top firm in Canada in the category of Patent Contentious. I won the award as Canada’s Outstanding IP Practitioner.

Other winners recognized for their excellence in IP including other Canadian winners can be found here.

UMG v Veoh: US appeal court sides with Veoh in appeal

March 17th, 2013 by Barry Sookman 2 comments »

Last week, the Ninth Circuit Court of Appeals released a revised opinion in the Veoh Networks caseUMG Recordings v Shelter Capital Partners No. 09—55902 (9th.Cir. Marc. 14, 2013), superseding the earlier opinion, UMG Recordings v Shelter Capital Partners LLC, 101 U.S.P.Q.2d 1001 (9th.Cir. 2011). The decision reviewed the scope of the DMCA hosting safe harbor finding it applicable on the facts of the case to the Veoh Networks video sharing site.

In the original decision the Ninth Circuit made three important rulings with respect to the scope of the DMCA hosting safe harbor:

Criminal copyright convictions of The Pirate Bay operators “necessity in democratic society” says human rights court

March 13th, 2013 by Barry Sookman 1 comment »

The European Court of Human Rights (ECHR) has ruled that the convictions of Fredrik NEIJ and Peter SUNDE KOLMISOPPI, operators of The Pirate Bay bittorrent site did not violate Article 10 of the European Convention on Human Rights. The Court found that the convictions of the defendants for criminal copyright infringement did not violate their rights to freedom of expression as the convictions and jail sentences imposed by Sweden’s Court of Appeal was “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention. The application to set aside the convictions was rejected “as manifestly ill-founded”.

How to avoid misleading disclosures in online advertising

March 13th, 2013 by Barry Sookman No comments »

Want to avoid making misleading disclosures in online advertising? Then the FTC’s new staff guidance document, .com Disclosures, How to Make effective Disclosures in Digital Advertising,  is a must read. It provides information businesses should consider as they develop ads for online media to ensure that they comply with US law.

The overview summarizes the general principles as follows:

  1. The same consumer protection laws that apply to commercial activities in other media apply online, including activities in the mobile marketplace. The FTC Act’s prohibition on “unfair or deceptive acts or practices” encompasses online advertising, marketing, and sales. In addition, many Commission rules and guides are not limited to any particular medium used to disseminate claims or advertising, and therefore, apply to the wide spectrum of online activities.

Internet retransmission of broadcasts a communication to the public, rules the CJEU

March 8th, 2013 by Barry Sookman No comments »

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 [2011] 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 requirements were met.

The Combating Counterfeit Products Act

March 4th, 2013 by Barry Sookman No comments »

Last week, the Government introduced Bill C-56, Combating Counterfeit Products Act. It has two main objectives. First, to protect public safety and health by enacting legislation specifically to target commercial scale trafficking in counterfeit products. Second, to make technical amendments to the Trade-marks Act such as to permit registration of non-traditional trade-marks like sounds, and to improve registration procedures. The Government backgrounder and related FAQs, and other information is available at Industry Canada’s website.

Canada’s anti-spam law (CASL), too much of a good thing

March 1st, 2013 by Barry Sookman 4 comments »

Here is a longer version of my article published in the Financial Post this morning titled Delete this anti-spam law.

Canadians don’t like spam. They also don’t like malware. But the more they learn about Canada’s new, but not yet in force, anti-spam law commonly referred to as CASL (for “Canada’s Anti-spam Legislation”), they don’t like it much either. The root of the problem is that the law starts with the assumption that all Canadians are spammers and purveyors of malware and works back from there by banning legitimate and illegitimate activities with vague rules and incomplete exceptions.