Tag Archives: Copyright

Righthaven – Media Bloggers Association files amicus brief

Originally posted 2011-02-24 10:20:41. Republished by Blog Post Promoter

I’ve written a little bit about the Righthaven lawsuits before.  Now, as reported in the Las Vegas Sun, on behalf of the Media Bloggers Association I’ve helped write something that could matter, namely this amicus brief, the laboring oar of which was manned by Marc Randazza and J. Malcolm DeVoy out of Randazza’s shop:

The focus is on the propriety and scope of copyright statutory damages in the situation.

UPDATE:  They opposed; we replied.

You are not the boss of me!

Internet Cases logoEvan Brown reports, as he does so often, about an important ruling that deals another blow to attempts at using intellectual property, and particularly its growing penumbras in the secondary liability area, law as a magic legal elixir to fix ever perceived legal or commercial problem:

After defendant left plaintiff’s employment to co-found a competing company, plaintiff sued defendant personally for copyright infringement based on the new company’s website’s resemblance to plaintiff’s website. The infringement theory was interesting – plaintiff alleged that defendant did not commit the infringement himself, but that he was secondarily liable for playing a significant role in the direct infringement by the new company’s employees. . .

It didn’t fly in BioD, LLC v. Amnio Technology, LLC, 2014 WL 268644 (D.Ariz. January 24, 2014).  Evan explains:

In this case, the court held that plaintiff had not alleged enough detail to state a claim of secondary liability against defendant. Instead, the complaint simply recited the elements of contributory and vicarious liability. . . .

[Plaintiff failed to allege that d]efendant, as a non-employee (but founder) of the new company, was personally responsible for the content of the new company’s website. (Interestingly, the court held it was not sufficient to allege that defendant was a founder of the new company. Although plaintiffs alleged some factual details about what was actually copied from plaintiff’s website, they alleged no factual details as to defendant’s personal involvement in the infringement.) . . .

Plaintiff’s attempts to impose secondary liability were (if they had worked) a clever method for accomplishing the same objective as piercing the corporate veil. Granular control by the individual founder could be equated with the “alter ego” aspect of the veil-piercing analysis. The absence of such specific control by the individual defendant, however, left the possibility of liability only with the company.

This last paragraph does raise an important issue:  ”Granular control by the individual founder could be equated with the ‘alter ego’ aspect of the veil-piercing analysis.”  Here the missing factual piece seems to have been the actual connection between the former employee, also the “founder” of the allegedly infringing website, and his actual control — necessary under vicarious liability doctrine (the secondary approach relevant here) — over the infringers.

It seems this was an attempt to use secondary liability “get at” the former employee, whose fingerprints were deftly, or perhaps entirely innocently, nowhere to be found on the allegedly infringing website, personally on the copyright claim.   Read More…

Best of 2011: Infinite loop

Originally posted 2011-12-30 01:44:12. Republished by Blog Post Promoter

First posted (in updated form) on September 20, 2011.Essex County historic courthouse detail(Originally published on July 22, 2011; see update at bottom!)

It can only mean one thing when you read this in a news article:

On Friday morning, the RIAA released a brief statement; “We disagree with this decision and are considering our next steps.”

That’s right:  It means U.S. District Court Judge Michael Davis has once again — for a third time — knocked down a jury’s copyright verdict against  Jammie Thomas-Rasset for the unlawful act of uploading other people’s music to the Internet so others could have it for free.  This time the remitittur was from $62,500 to $2,250 per song.  Yes, per song.

I’ve never suggested that’s uploading music to the Net okay.  It’s not, and consistent with what I said yesterday, whether it’s just plain disregard for other folks’ rights and property or ideologically-tinged civil disobedience, if it’s unlawful it should be punished.

But as I also said in a post called “‘Infinity Dollars’ — IP damages and the jury” a while back, where is the sense of proportion among people, the so-called “peers” of the defendant, who could possibly vote for such a preposterous verdict?  Is its source news reports about free-money-type verdicts given out like Pez candies to all kinds of legal claimants, utterly out of proportion to the damages suffered?  Is it some kind of reverse weird class consciousness punishment thing that I can’t begin to comprehend?  Is the distortion caused by allowing the jury to consider the punitive and seemingly arbitrary range of statutory damages available in copyright?

Well, it sure isn’t found in the law or the Constitution, not according to me or according to Judge Davis, who wrote, this time around:

The court is intimately familiar with this case. It has presided over three trials on this matter and has decided countless motions. It has grappled with the outrageously high verdict returned in a case that was the first of its kind to go to trial. The court is loath to interfere with the jury’s damages decision. However, the Constitution and justice compel the Court to act. . . .

To protect the public’s interest in enforceable copyrights, to attempt to compensate plaintiffs, and to deter future copyright infringement, Thomas-Rasset must pay a statutory damages award,” Davis wrote. “Plaintiffs have pointed out that Thomas-Rasset acted willfully, failed to take responsibility, and contributed to the great harm to the recording industry inflicted by online piracy in general. These facts can sustain the jury’s conclusion that a substantial penalty is warranted. However, they cannot justify a $1.5 million verdict in this case.

And here we go again.

Judges can’t fix this; it isn’t even their job.  Congress, for its part, is running in the completely opposite (wrong) direction.

It’s the Kopyright Krackup all right.  Coming soon to a streaming server far, far from you… and right in your living room.

UPDATE:  And the First Circuit sends it right back — the infinite loop continues!  As Venkat explains:

The $625,000 award in favor of Sony is reinstated, and Judge Gertner has to give Sony the choice between accepting a lower award ($62,500) or a new trial. Judge Gertner’s analysis of the Due Process limits on statutory damages and the feelings of Congress about peer-to-peer file sharing, while interesting, are swept aside (for now). The million dollar question, and one I wish the court had answered, is whether Sony can immediately appeal the reduced award or whether it has to proceed in the trial court. Will Sony be trapped in an “endless loop” of going through trials resulting in a damage awards that the court reduces on the basis that the awards are “excessive”? (See Ben Sheffner’s post about the Thomas-Rasset case: “Labels reject remittitur, opt for third trial on damages in Jammie Thomas-Rasset case.”)

The other question that the First Circuit’s opinion raised but didn’t address is: if statutory damages are to be determined by the jury, why does the trial court get to take this decision away from the jury and reduced it via a remittitur? What is the effect of Feltner on the common law practice of reducing damage awards? Where an award is within the statutory range, it seems odd for the court to have authority to reduce it via a remittitur–isn’t this the point of Feltner?.


Now you can go Holmes again!

Watson and Holmes

Which one is Brozik? Is Coleman really that old?

“Knock, knock.”

 ”Who’s there?”


   ”Watson who?”

    “Not much. But there is this decision from the U.S. District Court for the Northern District of Illinois…”

It would be tempting, to be sure, to try to embellish a discussion of the recent Sherlock Holmes decision with Holmesian flourishes, but this blawger isn’t going to do that—even though the decision has recognized his—and yours, for that matter—freedom to use the “characters, character traits, and other story elements from Sir Arthur Conan Doyle’s Sherlock Holmes stories”—or at least those published before 1923. That said, a simple recitation of the relevant facts is in order—a method Holmes himself might have employed—in a bulleted list (and Holmes would have been able to tell you whether I am left- or right-handed just by examining these bullets!):

  • Sir Arthur Conan Doyle wrote four novels and fifty-six short stories featuring the fictional characters Sherlock Holmes and his friend and chronicler Dr. John H. Watson.
  • The first story, “A Study in Scarlet,” was first published in 1887 (in the United States in 1890). Forty-five further stories and the four novels were published in the U.S. before January 1, 1923. All of these works are in the public domain.
  • The remaining ten stories, published after 1922, are still protected by copyright, owned by a company whose principals are relatives of Conan Doyle.
  • The plaintiff of Leslie S. Klinger v. Conan Doyle Estate, Ltd. is, among other things, an anthologist of new Sherlock Holmes stories. He co-edited an anthology of such works published by Random House, which had entered into a licensing agreement with Conan Doyle Estate, Ltd. to use the characters of Holmes and Watson, notwithstanding Klinger’s belief that no license was required by law. More recently, however, when Klinger sought to have a second anthology published by a different house—and Conan Doyle Estate, Ltd. again demanded that a licensing agreement be entered into (and threatened to pressure retailers not to sell the new book absent such a license)—the second publisher balked, prompting Klinger to sue Conan Doyle Estate, Ltd.
  • Klinger sued in the United States District Court for the Northern District of Illinois for a determination of the “copyright status of a list of specific characters, character traits, dialogue, settings, artifacts, and other story elements in the [Sherlock Holmes canon; the ‘Canon’].” After some procedural missteps—including a failure of Conan Doyle Estate, Ltd. to appear!—Klinger was permitted to move for summary judgment (which the Estate was permitted to oppose, despite its default). Read More…

Copyright injunctions Рplus ̤a change

Originally posted 2011-11-28 14:33:13. Republished by Blog Post Promoter

Morning in ManhattanLast summer I mentioned the new law in the Ninth Circuit — or, as I insisted, the clarification of the existing law — to the effect that a copyright plaintiff is not entitled to a presumption of irreparable harm, and thus an injunction, merely upon a finding of infringement.

David Kalow and Milton Springut point out in the New York Law Journal that this has been the law in the Second Circuit since the 2010 decision in Salinger v. Colting – reported on here for other reasons.  These lads usually represent plaintiffs, but their article is well balanced and worth taking a look at.  Despite their typical position in copyright litigation, they’re not too broken up about this development, as they explain:

[I]n both copyright and trademark cases, the Second Circuit held that once likelihood of success was shown, there arose a presumption of irreparable harm. Thus, as a practical matter, a trademark or copyright owner seeking a preliminary injunction had to focus on proving a strong likelihood of success on the merits. Once proven, and absent unusual circumstances (most usually delay in seeking relief), entry of a preliminary injunction was almost routine. . . .

Ostensibly, Salinger appears to be a major change, adding significant new burdens for a copyright or trademark plaintiff seeking a preliminary injunction. However, a review of the decided cases in the Second Circuit since Salinger reveals that generally the new standard is of little practical difference. Once likelihood of success on the merits is shown, it is usually an easy matter to prove the other factors. We discuss each of the three Salinger factors (aside from likelihood of success), what is required to meet them, and how courts have found them to be satisfied.

Yep, that’s how it usually works out.  Plaintiffs don’t get a free pass on irreparable harm, but once plaintiffs have proved infringement, there aren’t too many situations where they can’t prove harm too.

What is interesting about the analysis in the article, and a little troubling, is that it seems to confirm just what a defendant’s lawyer would expect:   Read More…

Fight for your right to parody. Or don’t.

GoldieBlox logoSometimes, just when a copyright dispute is getting very interesting, the parties go and do the unthinkable: They resolve their differences like reasonable people, and then there’s nothing left to do but imagine how things might have played out. And here we are.

Recently, in a very short period of time—less than two weeks—these things happened, in fairly rapid succession:

  • A company called GoldieBlox—established in 2012 to help introduce girls to the field of engineering—produced and released an advertisement for its products.
  • The GoldieBlox spot got noticed—because it was twelve kinds of awesome—but one of the ways in which it was awesome is the parody of the song “Girls,” recorded and released in 1987 by the Beastie Boys, used as the soundtrack.
  • GoldieBlox was contacted by counsel for the Beastie Boys. Said counsel reportedly notified GoldieBlox that because the Beastie Boys and writer/producer Rick Rubin, as copyright holders
    of the original song, had not given—and did not now give—permission for a version of the song to be recorded and used, GoldieBlox was therefore infringing the exclusive intellectual property rights of the Beasties/Rubin, and that unless such infringement ceased and GoldieBlox desisted… well, you know the rest.


  • GoldieBlox sued the Beastie Boys and Rubin—with admirable alacrity—for a declaratory judgment… and the Internets went nuts, in part because many laypersons do not understand what declaratory judgment is (remember the Robin Thicke/Marvin Gaye story from a few months ago?), and in part because many people thought they’d read or heard that the Beastie Boys had sued GoldieBlox.
  • Then Beastie Ad Rock tweeted: “You guys..Don’t get it twisted. We did not threaten to sue Goldiblox..THEY’RE SUING US.” Which was accurate, if a tad disingenuous. A distinction without a difference, one might say.
  • And then GoldieBlox did something seemingly—see below—very classy: The company posted an open letter to the surviving Beastie Boys stating, among other things, that the company was unaware before hearing from the Beasties’ counsel that the late Adam Yauch had “requested in his will that the Beastie Boys songs never be used in advertising” and for that reason, even though “we believe our parody video falls under fair use, we would like to respect his wishes and yours,” GoldieBlox had already removed the song from its video. (Of course, the unredacted version can still be found with no effort at all, but it would be irresponsible for this blawg to point you to anywhere specific.)

Licensed to ill in NY and NJ.

I write “seemingly,” because one might argue that GoldieBlox has already gotten everything it had hoped to from its song parody, and therefore removing it now is merely… er, lip service. Indeed, some have suggested that GoldieBlox’s entire goal from the start was simply to get press, and that proactively suing the Beastie Boys was just a part of the plan—except that to bring a legitimate suit for declaratory judgment one needs to allege a real controversy, and there would have been none if the Beasties’ lawyers had not threatened legal action. And it’s not as if you can force someone else’s lawyer to threaten you with litigation. The most you can do is use their intellectual property without permission in a video that goes viral and… wait just a minute…!)

This will probably be the end of the matter. Read More…

Authors Guild v. Google: Judge Chin’s decision in favor of Google Books

Anyone looking for the Author’s Guild v. Google decision on the Southern District of New York website is going to have a hard time: It’s working like the Obamacare website right now, probably because everyone is hitting it looking for a copy of the opinion.

Well, here it is, courtesy of Gigaom:

Google Books ruling on fair use.pdf

Blog posts at LIKELIHOOD OF CONFUSION® about this case are collected at this fairly recent post.

“Happy Birthday”: Second verse, same as the first.

While I wasn’t looking, the lead plaintiff in the class action to have the song “Happy Birthday to You” declared to be in the public domain (1) in late July, voluntarily dismissed the action brought in the Southern District of New York, and (2) in late June, filed a class action in the Central District of California, which has been consolidated with other cases… but it appears that the allegations and claims as we knew them are all intact, just relocated. It would appear as well that the plaintiffs filed a Second Amended Consolidated Complaint along the way, because it is parts of this Second Amended Consolidated Complaint that are the subjects (objects?) of a recent motion to dismiss made by the defendants, Warner/Chappell Music, Inc. and Summy-Burchard, Inc.

Wasn't looking.

Wasn’t looking.

On August 30, the defendants moved to dismiss the plaintiffs’ federal claims (Claims One and Two, of seven, seek the declaratory judgment and other relief that would follow from the entry of declaratory judgment) to the extent that they are time-barred by § 507(b) of the Copyright Act, a three-year statute of limitation. The defendants also moved for dismissal of the plaintiffs’ other five claims, all based in state law, as being preëmpted, insufficiently pleaded, time-barred, etc.

The court—Hon. George H. King, Chief U.S. District Judge, presiding—ruled as follows:

  • Some of the plaintiffs’ federal law claims—that is, the claims of some of the plaintiffs—are time-barred, being older than three years. The plaintiffs argued for a four-year limitation period, inasmuch as the bar expressly provided in the Copyright Act doesn’t, or shouldn’t, apply to declamatory judgment actions, and the federal Declaratory Judgment Act does not have its own statute of limitations, so the court should borrow a limitation period from an analogous California statute… which argument the court found unpersuasive. So Claims One and Two were dismissed as to certain plaintiffs, with leave to amend their pleadings to allege delayed accrual or tolling. But the Second Amended Consolidated Complaint remained undismissed generally.
  • And, giving effect to something the parties themselves had agreed upon at a conference, the court ordered that Claim One—for declaratory judgment—would be bifurcated through summary judgment. The other six claims—the one federal claim for post-declaration relief and the five state-law-based claims—are stayed until further order of the court.

I would love to be able to end this post by writing, “We’ll be watching this case closely as it continues…” or some such, but the truth is that I’ll probably get distracted and won’t even know about a resolution for a month after one is reached, and I’ll still be sending Warner/Chappell royalty checks every time I sing “Happy Birthday to You” even when the song is in the public domain….

“I Have a Dream ©”

Originally posted 2005-01-18 20:39:00. Republished by Blog Post Promoter

The online Globe and Mail has an important item on how documentary filmmakers and others are being slammed by the IP equity grab, called “How Copyright Could be Killing Culture”. Okay, maybe “killing culture” is a little over the top. I suppose if more rigorous enforcement of copyright would throw a speed bump in front of the likes of Michael Moore, our modern Leni Reifenstahl, that would put a little chill in the air — but is that killing “culture”?

The point of the article, flagged by Tech Law Advisor, is nonetheless well taken. On the road yesterday morning, I listened to the entirety of the “I Have a Dream” speech on the Imus show (and, indeed, wondered about permissions — or does Imus need them?). The speech is breathtakingly beautiful, compassionate, stirring, patriotic; it is a truly appeal to America’s better self. (What a contrast to the self-parodic tropes of King’s imitators.)

The Eleventh Circuit Court of Appeals ruled in 1999 that the speech was not “generally published” for purposes of waiver of copyright, and that the King estate had the right to enforce its copyright in the speech. It is interesting to learn that King himself filed the copyright for the speech (albeit a month after he gave it — one of the issues in play in the case). According to the Globe and Mail article, however, for the makers of the King documentary Eyes on the Prize to renew their copyright clearances, they would need between a quarter and a half a million dollars. Evidently they won’t or can’t do it, so untold numbers of schoolchildren (who, please God, are prevented from listening to Imus’s show) won’t be exposed to the documentary, the speech, or this compelling version of the MLK story.

John Fund of the Wall Street Journal wrote a powerful opinion column on this topic two years ago. Here’s a fairly disturbing excerpt:

Many civil-rights leaders believe the King family has stepped out of bounds in merchandising Dr. King’s memory. In 1997, Dexter King negotiated a multimedia deal with Time Warner that the company said could mean as much as $10 million in royalties on books, Web sites and CD-ROMs. While schools may use Dr. King’s speeches free, family lawyers hunt down scholars who would use his words. “Eyes on the Prize,” the PBS documentary on the civil-rights movement, was delayed until the producers made a $100,000 payment to the King family. Julian Bond, head of the NAACP, says the price of his civil-rights textbook went up by at least $10 a copy because he had to pay to include four King documents in it.
“The family hasn’t done itself a lot of favors with its insistence that somehow they have to profit,” says Mr. Bond.

No, copyright won’t “kill culture,” but is it all worth it to ensure the Mickey Mouse franchise for perpetuity?

Oral argument tomorrow at the Second Circuit — Ochre LLC (Copyright – Useful articles – Lighting – Fashion Design)

Arctic Pear by Ochre

Arctic Pear by Ochre

Tomorrow morning I will appear before the United States Court of Appeals for the Second Circuit, which will hear argument in Ochre LLC v. Deutsche Bank, a copyright case.

As usual, I won’t comment substantively about a pending matter — at least not beyond the very general questions I raised in this post – but will quote from the brief’s preliminary statement:

In Chosun Int’l, Inc. v. Chrisha Creations, Ltd., 413 F.3d 324, 328 (2d Cir. 2005), this Court held that “one may not copyright the general shape of a lamp.” This appeal raises the question of whether the “general shape of a lamp” prohibition has evolved into a per se rule that a lighting fixture, regardless of how it is configured and without regard for its aesthetic properties or value, can never be afforded copyright protection. Plaintiff-appellant Ochre, LLC (“Ochre”) submits that the law has not, and should not, evolve to that point.

A number of recent cases decided by this Court suggest that the rule of Brandir Int’l, Inc. v. Cascade Pac. Lumber Co., 834 F.2d 1142, 1147 (2d Cir. 1987), in which the Court ruled that “a copyrighted work of art does not lose its protected status merely because it subsequently is put to a functional use,” has been eviscerated to the point of having been overruled sub silentio. This case presents an ideal opportunity for this Court to demonstrate that under the right circumstances, a creator of lighting designs can meet the elevated standards of the Copyright Act for protection of useful articles under the minimal standards for stating a cause of action of infringement under Fed. R. Civ. P. 12(b)(6).

There are two reasons this is that case. One is that the “useful article” involved, and for which copyright protection was denied by the district court – plaintiff-appellant Ochre, LLC’s celebrated “Arctic Pear” lighting design – is highly unusual for its widely-acclaimed aesthetic qualities, entirely separate and apart from its ability to provide illumination. The second reason is that the facts describing the respects in which the Arctic Pear fixtures embody protectable, aesthetic components that are clearly separable from the object’s utilitarian ones have been pleaded explicitly, precisely and plausibly, in plaintiff’s Second Amended Complaint (“Complaint”).

The district court nonetheless dismissed the Complaint because it applied an incorrect legal standard, requiring not only that a lighting fixture’s separable aesthetic features be pled explicitly but holding that such allegations are of no legal significance if those features have any role, even a non-exclusive or incidental one, connected or “related to” illumination under any circumstances. This is contrary to the rule of Brandir. Additionally, the district court erred by overlooking allegations in the complaint that, if properly considered, would have met the legal standard it enunciated anyway.

The second ground of dismissal by the district court, at least with respect to all but one defendant in this infringement case, was improper “lumping” of claims against the respective defendants. The district court erred in applying this doctrine, normally reserved for causes of action sounding in fraud or complex transactions in which the respective parties cannot tell from the pleadings what they are being accused of. Here the relationships were straightforward and well defined. The facts concern a narrowly defined scope of time and a series of transactions with which all the defendants are familiar. Moreover, under the pleadings standards for both direct and secondary copyright infringement (both vicarious and contributory), the court’s lumping determination was inappropriate considering the general rule of joint and several liability for copyright infringement and the minimal requirements of Fed. R. Civ. P. 12(b)(6).

Appellant’s Brief – Ochre v. Rockwell (Copyright in Unusual Light Fixture as sculpture — Appeal from rulin…

Norman Blagman versus the whole digital music industry: Round 1 to Blagman.

I can’t write a better introductory sentence than Judge Andrew Carter of the United States District Court for the Southern District of New York did to open his May 20, 2013, order and opinion in Blagman v. Apple Inc., so here is His Honor’s:

On October 12, 2012, Plaintiff Norman Blagman filed an amended class action complaint against, for all intents and purposes, the whole of the digital music industry.

Indeed, the defendants Blagman has sued are Apple Inc.; Amazon.com, Inc.; Google Inc.; Microsoft Corporation; EMusic.com Inc. (collectively the “Retailer Defendants”); and Orchard Enterprises, Inc. and Orchard Enterprises NY, Inc., two entities that aggregate musical recordings from record labels and other content providers to then sell to the Retailer Defendants for retail sale on their respective websites.

Matthew David Brozik

Doesn’t steal music.

The defendants—all of them—moved to dismiss the class action complaint on the grounds that it failed to state a claim of copyright infringement. The defendants argued that Blagman’s complaint did not satisfy the standard “requiring a plausible claim to relief because (1) he does not make specific allegations of copyright infringement; (2) his generalized assertions of industry-wide infringement fail to state a claim of copyright infringement; and (3) [he] makes no allegations of willful infringement.” Moreover, the entire digital music industry asserted, the allegations on behalf of the putative class do not state a claim of copyright infringement or establish standing for putative class members.  And, further, the defendants moved in the alternative to strike the class allegations from the complaint for failure to meet the class certification requirements.

Slow down, defendants! ruled Judge Carter. Also, you’re wrong. On all counts. Motions denied.

Blagman himself is a composer, the author of three musical compositions. Blagman alleges that the Orchard entities did not acquire mechanical licenses for his musical compositions and the Retailer Defendants did not ensure that the compositions—available for sale on their websites—were properly licensed. Worse, the defendants have likely done this with “thousands of other copyrighted compositions,” Blagman complains. Maybe so. Who can say?

In order for anyone to say, says Judge Carter, we’re going to have to let this lawsuit progress some. Read More…

“I don’t even own a TV”—Aereo (Part Two)

aereo-logoFamiliarity of the reader with Part One is presumed.

As I read the Second Circuit decision, I was pleased—for reasons I can’t quite, and won’t bother trying to, articulate—that the appellate court was affirming the denial of a preliminary injunction in part, at least, because the granting of the injunction would probably have “severely harm[ed] Aereo, likely ending its business.”

Yet I was at the same time bothered by something I couldn’t quite put my finger on, until I did, and it was nothing other than the acknowledgment by the Second Circuit (immediately preceding the one just quoted) that “the [district] court concluded that the Plaintiffs had demonstrated a likelihood that they would suffer irreparable harm in the absence of a preliminary injunction.” Which means, of course, that right now—and since March 14, 2012, when Aereo began providing its service to subscribers… and through tomorrow, and the day after, and the day after that… until such time as the plaintiffs prevail in the two lawsuits pending in the Southern District of New York (and are awarded a permanent injunction), an eventuality Judge Nathan has deemed unlikely as a matter of law, which ruling the Second Circuit has affirmed… the plaintiffs, every broadcast network in New York City, are being irreparably harmed.

Matthew David Brozik


How, exactly? The appellate decision doesn’t discuss the harms to the plaintiffs, because it doesn’t need to. The Second Circuit agreed that the plaintiffs “are not likely to prevail on the merits,” so its discussion of the harms claimed by each side of the dispute are minimal. “Plaintiffs do argue that any harm suffered by Aereo should be disregarded in the balance of hardships analysis because Aereo’s business is illegal,” the Second Circuit decision reads, “…[b]ut this argument hinges on the conclusion that Aereo’s business infringes the Plaintiff’s copyrights,” which the court concluded it does not, at least “on the limited question before us… whether Aereo’s transmission of unique copies of recorded programs to the Aereo users who directed that they be created are public performances.” So we must seek our answer elsewhere. Perhaps in the district court opinion.

But before we look there, let’s think about this like regular folks. Regular folks don’t read court opinions. Regular folks ask whether something feels right or wrong. And this feels at once both right and wrong.

Imagine that you live in New York City. As a NYC resident, when you’re not at a Yankees game or ice skating at Rockefeller Center or having lunch with, say, Michael Bloomberg at Ray’s Famous Original Ray’s Pizza, you might watch some broadcast television, which you don’t pay for, since you have an antenna attached to your top-of-the-line widescreen HD set in your 350-square-foot studio apartment that you share with a roommate and a cat. But when you get home from your pizza date your roommate and his girlfriend and her friend are using the TV to play video games (only ironically, though)… but you’re not out of luck, since you’re an Aereo subscriber! So you take your iPad to your freecycled futon in your corner of the room and you log in and request that the new episode of whatever show everybody likes that’s playing right now be streamed to your Internet-capable device.

Where’s the harm in that? Read More…