Deborah D. McAdams /
02.19.2014 06:45 PM
HPA Day #2: The Washington Update…
Courts appear to be expanding Fair Use
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.

Last month,  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 Use,” 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 Cariou.
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 another legal perspective.


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