INDIAN WELLS, CALIF.
Jim Burger of Thomson Coburn LLP traditionally provides the Washington Update at the HPA Tech Retreat. This year’s topic du jour
was intellectual property
, and how Congress and the legal system are
grappling with related laws
a House hearing entitled “The
Scope of Copyright Protection” highlighted a battle over broadcaster copyright
protection, as well as copyright for “codes, laws and standards,” which Burger
described as “facts.”
“You can’t copyright facts,” he said.
A second January hearing deconstructed “Fair
,” which allows limited use of copyrighted material without permission
from rights holders for “criticism,
comment, news reporting, teaching, scholarship, and research,” according to the
U.S. Copyright Office. Burger
said recent litigation seemed to be expanding Fair Use.
E.g., in November, Judge Denny Chin of the U.S Court of Appeals for the Second
Circuit, dismissed an author suit against Google for digitizing 20 million books.
In another case last March, the Ninth Circuit dismissed a copyright suit
against the producers of “Jersey Boys” for using a seven-second clip of Ed
Sullivan—and awarded the defendant attorney fees. A third case involved Richard
Prince, an “appropriation artist” who altered the works of photographer Patrick
Prince lost at trial, but won on appeal in the Second Circuit,
which said there was evidence of effect on the market for the original works.
Fair Use plays into the attitude of the courts regarding broadcast signals,
particularly the copyright lawsuits against Aereo
. Broadcasters are suing Aereo for retransmitting TV station
signals, and charging for them, without consent. The issue hinges on whether or
not the court determines Aereo’s service is a public or a private
performance—the basis of TV signal copyright. Broadcasters failed to secure an
injunction from two federal circuit courts, but succeeded in securing a hearing
by the U.S. Supreme Court. The high court will hear oral arguments April 22. (They
also succeeded won an injunction hours after Burger’s presentation from a judge
in Utah. See “Injunction
Against Aereo Granted in Utah
The Dish Hopper has similarly been targeted by broadcasters because it can be
programmed to automatically skip commercials in prime time, only on broadcast
networks. The networks also have failed to secure an injunction on the Hopper
from the federal circuit.
Burger also touched on network neutrality, which compels broadband providers to
treat all Internet traffic equally. The Federal Communications Commission
codified network neutrality in 2010. The D.C. Circuit Court uncodified it last
month. FCC Chairman Tom Wheeler said the agency would take another crack at it from