American Broadcasting Companies vs. Aereo, Inc.

A couple of weeks ago, overshadowed by the Hobby Lobby decision, SCOTUS handed down a copyright decision that may substantially limit the ability of transmitters to transmit copyrighted broadcasts without a license to do so.

In American Broadcasting Cos. v. Aereo, Inc., 573 US ___ (2014), Aereo is a subscription broadcasting service that sold “…to its subscribers a technologically complex service that allows them to watch television programs over the internet at about the same time as the programs are broadcast over the air.” Slip Op. at 1. The technology is detailed in the case, so I do not reproduce it here; suffice it to say that through a complex series of technological events, each Aereo subscriber ends up having his or her own dedicated antenna through which copyrighted content is streamed to one computer only. The US District Court for the Southern District of New York, affirmed by the US Court of Appeals for the Second Circuit, found that this technology does not infringe the rights of the copyright holders of the shows that Aereo streams to its users because, first, Aereo does not “perform” within the meaning of the Copyright Act and, second, even if it does “perform,” it does not do so “publicly” because there is a dedicated antenna connected to only one computer, making the streaming a private showing, thus falling outside the “public” performance requirement of the Act to qualify as infringement.

SCOTUS disagrees. In a 6-3 decision delivered by Justice Breyer (the dissent comprises Justices Scalia, Thomas and Alito; all others concur in the majority opinion), the Court decreed that the 1976 Copyright Act was put in place, in large part, to overturn their decision in Fortnightly Corp v. United Artists Television, Inc., 392 US 390 (1968), which held that community-antenna television falls outside of the scope of the Copyright Act of 1952. Given the clear intent of Congress to make such activities fall very definitely within the scope of the Copyright Act, and given that Aereo’s activity are not substantially different from those of Fortnightly, the Court felt duty-bound to overturn the Court of Appeals for the Second Circuit’s holding that Aereo’s activities do not infringe copyright. SCOTUS holds for the plaintiff in determining whether (a) Aereo “performs” within the meaning of the Act and (b) Aereo performs “publicly” within the meaning of the Act.

There is language in the case that indicates that this case can be read narrowly, but this case puts rebroadcasters on notice: The act of rebroadcasting is a “transmission” within the meaning of the Act, and the viewer and broadcaster “perform publicly” within the meaning of the Act.

I advise my clients that it’s always easiest, best, cheapest to get a license to use the copyrighted works of others. This case just goes to show that this advice is still good.

The oral arguments on both sides are actually interesting for those of us who like copyright matters.

Are you dead? Your IP isn't

Albert Einstein, who died in 1955, earned $18 million last year.

Charles M. Schulz, whose PEANUTS characters live on in syndicated reprints, earned even more.

Ted Geisel, who will live forever in his timeless Cat in the Hat and Lorax and Sneetches and wacky machinery, earned more yet.

We all know you can’t take it with you, but you can keep earning it even when you’re not here to earn it. Well, not you, but the value of your intellectual property can carry on after you go gently into that good night.

Thus, if you’re the owner of any intellectual property at all, you need to bother protecting it. Whether you benefit from the protection personally or not, your heirs may very well benefit from it.

If the copyright in your work of authorship isn’t registered, register it. It costs $45 in the US, plus the time to fill in the Copyright Office’s #$% form if you do it yourself; it’s a bit more expensive to hire an attorney to do this for you, but you stand a better chance of successfully battling off any challenge that the Copyright Office might mount to your registration.

If the trademark that you’ve been using to designate your goods or services in commerce isn’t registered, register it. This is more involved than is copyright registration and you really should have an attorney do this for you.

While we pay lip service to the common-law rights of an intellectual property owner, registration of intellectual property rights provides significantly — SIGNFICANTLY — more and better protection.

IP can be passed on to another by will. You need to work with your attorney who handles your will and estate in concert with your attorney who handles intellectual property matters (and these are probably two different lawyers) to properly protect and pass on your IP. Your IP is a valuable part of your estate and needs to be treated every bit as decisively as does the dining room table or the computer or the … whatever.

After all, Einstein earned $18 million last year for his estate; why shouldn’t you do that after you’re gone?

Microsoft Wins 10,000th Patent

Microsoft Wins 10,000th Patent – Channel News by CRN and VARBusiness.

US Patent No. 7,479,950, issued to Microsoft, applies to Surface tabletop computing technology, which provides instant access to digital information in a novel, useful and nonobvious way, the goal being to make interactions between the physical and virtual worlds more seamless.

Microsoft is famous for aggressive protection of its intellectual property; that they now have 10,000 patents (and counting) backs that position up. They spend about $8 billion per year on R&D and regularly haul out the guns in patent warfare; their current target is open-source software, which they claim violates at least 40 Microsoft patents.

This is why Microsoft stock does well. This is why they survive, despite the worldwide snarl that the name engenders. Microsoft is a prime example of a company that has leveraged nothing but intellectual property into a multi-billion-dollar enterprise.

And to think it all started with a college drop-out.

Jacobsen v. Katzer, from the US Court of Appeals for the Federal Circuit

Jacobsen v. Katzer – AltLaw.

This is a case from the US Court of Appeals for the Federal Circuit (which holds exclusive jurisdiction over patent appellate matters) that considers the intersection of copyright and licensing law. Is it possible for a copyright holder to dedicate certain work to free public use and yet enforce an A open source @ copyright license to control the future distribution and modification of that work?

Here, the plaintiff holds a copyright that he dedicated to the public domain through open-source licensing. The license for open-source technology, though, has a catch (the source of all open-source code must be acknowledged in downstream works), and the downstream users have to comply with the catch or be caught infringing the open-source license.

IP Audit a Necessity for Due Diligence

What IS an IP audit, anyway?

An IP audit is a systematic categorization of all of your business’s intellectual property, including but not limited to:

  • Inventions (patented and unpatented)
  • Copyrights (registered and unregistered)
  • Trademarks (registered and unregistered)
  • Trade Dress (registered and unregistered)
  • Trade Secrets (obviously unregistered)

This categorization, with a simultaneous search for areas where your IP may have “holes,” is done by an intellectual property attorney in cooperation with your firm’s management team; despite the word “audit,” this is NOT an accounting function (although certainly an accountant belongs on your firm’s management team and probably on the IP audit team).

Use an IP audit as due diligence when you plan to merge, divest, buy, sell, create, license, franchise your property. Also use an IP audit when there has been a shift in the law that governs IP.

For more information about IP audits, read Nancy’s article, published in the December 2003 issue of Les Nouvelles (the flagship publication of the Licensing Executives’ Society), The Intellectual Property Audit (.pdf format) or visit our IP Audit webpage.