Tag: Intellectual Property

We just got word that the Supreme Court has declined to review the Cablevision remote DVR case. This is the case where Hollywood and some cable networks sued Cablevision for providing a TiVo-like service where the copy of the recorded program resides on the cable operator’s servers rather than on a hard drive in the home. The studios claimed that both the buffer copies and the copies residing on Cablevision’s servers were a violation of its right to reproduce the program, and that the recordings sent to the customer were a violation of its public performance right. A lower court in New York City sided with Hollywood, but the 2nd Circuit Court of Appeals reversed that decision, ruling that the remote DVR service did not violate Hollywood’s copyrights.

The Court’s decision not to take the case is a huge victory for consumers and all video service providers, not just cable.

Perhaps you remember Rashmi’s post about how the Ninth Circuit’s decision in Omega v. Costco opened the door to copyright owners taking control of the import markets for all kind of products, merely by slapping a copyrighted logo onto everything they make. Wednesday, PK and EFF filed a brief asking the Supreme Court to take the case, explaining that the consequences of the Ninth Circuit’s decision go even further than controlling imports. The short version is that under the Ninth Circuit’s interpretation, any product which has a label or logo manufactured abroad cannot be imported into the U.S., resold, or given away by a lawful purchaser without permission of the owner of the label’s copyright. Sound like a big deal? It is.

Word came through the grapevine today that France's "three strikes" HADOPI law has been struck down by the French Constitutional Council. While this is fantastic news, it's not exactly surprising--until this point, the constitutionality of the law had remained an open question. What's more, even if the law had survived the French Constitutional Council's scrutiny, it most certainly would have attracted the attention of the European Union, who in October of last year, passed an amendment prohibiting member states from implementing three strikes regimes. Luckily, the French Constitutional Council sided with the EU Parliament, going so far as to cite the Declaration of the Rights of Man and of the Citizen, a founding document of the French Revolution. "…[W]hereas under section nine of the Declaration of 1789, every man is presumed innocent until he has been proven guilty, it follows that in principle the legislature does not establish a presumption of guilt in criminal matters," the Council wrote in its ruling.

Note: The full text of the filing is here.

Public Knowledge, Media Access Project, New America Foundation and U.S. PIRG said the Federal Communications Commission (FCC) needs to change how broadband is regulated, because the service is an ‘essential utility’ and not a luxury.

In a filing with the Commission, the groups said any new approach should reflect the failures of the marketplace, which have resulted in minimal competition, and higher rates for lower speeds than in many other industrialized nations.

Today, the Solicitor General filed a brief that asked the Supreme Court not to revisit an appellate decision that allows the use of remote video recording and playback. While the brief represents only a recommendation to the Court, such recommendations usually carry a fair amount of weight, as the Court asks for these opinions to represent the views of the US government.

The brief argues that the Second Circuit’s decision in Cartoon Network v. CSC Holdings should not be reviewed by the Supreme Court both because the decision is well reasoned, and because it’s not well-placed to make good law if the Supreme Court were to take it up.

As for the first rationale, it’s no secret that I’d agree that the Second Circuit’s decision was rightly decided.

It’s hard to imagine an American industry as privileged and protected as the newspaper. Right there in the First Amendment to the Constitution, are the words: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press…” No other industry is mentioned in the Constitution.

The rights of journalists, working in print or electronic media, have been protected down through the years. While ordinary citizens might be liable to be sued for libel, the U.S. Supreme Court in 1964 set a higher standard in Times v. Sullivan so that a newspaper could be sued only if it could be proved the paper knew ahead of time that what it was printing was false.

In any other industry, the concept of competitors combining operations might be anathema to rigorous antitrust law (admittedly a stale concept after the past eight years).

Yesterday, Google announced that it was changing its ad policies to allow advertisers to use other people’s trademarks in the text of their ads. This makes sense—there’s a number of different contexts in which one company might refer to another in an ad: Home Depot wants to tell you it has great deals on Toro lawnmowers; AT&T wants to hammer home the point that they’re the only US home of the iPhone; Pepsi wants to tell you that people like its taste more than Coke. However, the new policy still restricts how those trademarks can be used beyond what the law allows.

Back in March, Reps. Bono Mack, Barrow, and Barton introduced H.R. 1319, The Informed P2P User Act, a bill that was intended to “prevent the inadvertent disclosure of information on a computer through the use of certain “peer-to-peer” file sharing software.” The bill tries to respond to the problem you may have read about or seen on TV where people have installed file sharing software on their computer and unintentionally exposed their private and sensitive information to the public. The bill will be at least part of what’s discussed at today’s House Energy and Commerce Committee hearing. While the bill maybe well intentioned, it’s flawed in a number of ways:

On Thursday, the US Trade Representative issued this year’s Special 301 Report, which is meant to highlight countries that are seen as not doing enough to protect copyrights, patents, and trademarks. Countries are placed on a “Watch List” or a “Priority Watch List.” Countries on the Priority Watch List face the possibility of trade sanctions.

Placement on the lists is based upon comments and consultations from interested parties—and the parties who keep showing the most interest in this process are the industry groups that profit from IP. The list has been used as a means for the content industries to add the weight of the US government to their gripes about the state of other countries’ IP laws.

This week, the Honorable Judge Chin of the Southern District of New York granted us permission to file an amicus brief regarding the proposed Google Book Search settlement. Since the proposal’s announcement back in October, we’ve been poring over the 320 pages of text and attachments, meeting with parties on all sides of the issue, and weighing the upsides and the downsides of the deal. In the end, we have some serious concerns about aspects of the proposed settlement, and plan to bring those concerns to the attention of the Court before Judge Chin makes a final ruling. On Wednesday, he granted a 4-month extension for those who wish to file, so there is still much to be done, but we thought we’d give you a preview of the issues we plan to raise.