28 June, 2014

Aereo's Streaming Service Infringes Copyright, Says Supreme Court

Having discussed the Aereo saga quite extensively through its litigation life cycle (speculation on the Supreme Court decision can be found here, discussion on the District Court decision here), this writer for one bated his breath waiting for the US Supreme Court decision on the case. Arguably the outcome of the Justices' deliberation is important, especially as the Internet is slowly overtaking traditional means of media distribution all over the world. Netflix alone has over 30 million subscribers, showcasing how the paradigm is shifting towards a more convenient, on-demand consumption of media. In the end the final word was the Supreme Court's.

For the uninitiated, the American Broadcasting Companies Inc v Aereo Inc case dealt with the web-based service Aereo, which offered, for a subscription fee, the streaming, recording and live watching of TV programming. This was done on an individual basis, and relied on the subscribes' request to watch a given show, live or not. Subsequently several broadcast companies objected to this as the service potentially infringed on their copyright, and took Aereo to court. Initial judgments have gone Aereo's way, and the final word fell on the Supreme Court.

The question for the court boiled down to whether Aereo's service was a public performance of copyrighted works under 17 USC section 106, or in other words a transmission of a performance, and as such, infringed the provision. In the vein of the historical decisions of Fortnightly and Teleprompter, the court equated Aereo's service to those of cable providers, with Justice Breyer (in the majority's opinion) stating that "[t]he subscribers of the Fortnightly and Teleprompter cable systems also selected what programs to display on their receiving sets... The same is true of an Aereo subscriber". Through this likeness the court decided that Aereo was indeed performing for the purposes of the provision, and Congress' intent was to prevent just that with the amendments after the aforementioned cases. The latter part of whether this performance was public remained in the Justices' deliberation.

Justice Breyer's decision assessed whether the performance was a transmission to the public mostly through the court's view on Congress' legislative intent, largely ignoring technological differences of the transmissions. Whether the transmissions are made to individuals makes no difference as "...the members of the public capable of receiving the performance... receive it in the same place or inseparate places and at the same time or at different times", which does not make a difference to whether it is to 'a public'. As long as several people have the potential to watch those programs, the transmission is to a public within the scope of the provision.

Sharon was distraught after the decision
Justice Breyer summarized the judgment well: "...having considered the details of Aereo's practices,we find them highly similar to those of the CATV systems in Fortnightly and Teleprompter. And those are activities that the 1976 amendments sought to bring within thescope of the Copyright Act. Insofar as there are differences, those differences concern not the nature of the service that Aereo provides so much as the technologicalmanner in which it provides the service. We conclude that those differences are not adequate to place Aereo's activities outside the scope of the Act". Aereo therefore infringed the copyright of the TV broadcasts it transmitted, and was held liable.

Justice Scalia in the dissenting opinion saw things differently, and equated the service to more of a library card rather than an on-demand video service, as users access freely available content through a small antenna. The service is not automatic, and wholly relies on the user, furthering Justice Scalia's opinion. He outright rejects the majority's opinion on Aereo's potential performance, stating that "...Aereo does not “perform” for the sole and simple reason that it does not make the choice of content. And because Aereo does not perform, it cannot be held directly liable for infringing the Networks’ public-performance right".

The majority's opinion is an odd one, at least from the stand-point of argumentation. It relies heavily on Congress' intent, rather than the wording of the provisions. As was presented by Mitch Stoltz from SCOTUSBlog: "...the majority’s approach in Aereo transformed interpretation of the transmission clause into a common-law-style exercise in judicial discretion", leaving the provision very open to future application. Mr. Stoltz further argues that "[t]he opinion sets out guidelines that more closely resemble the open-ended fair use analysis, or perhaps the proximate cause analysis in a tort case", which one can wholly agree with. The future of the Transmit Clause remains less certain after the ruling, and its future effects on Internet service like Aereo will remain to be seen. Aereo for one will have to take steps and modify its service to remain usable.

Source: The Verge

22 June, 2014

Thoughts on the Cancelled Washington Redskins' Trademarks

After having discussed what is inappropriate in trademarks a few months ago, the topic has since emerged in the global trademarks discussion after an update regarding the often debated Washington Redskins mark emerged. The discussion has largely focused on the reasoning of the US Trademark Trial and Appeal Board, and has yielded a certain level of hyperbole and misinformation regarding the mark and trademarks in general. It is because of this this humble writer thought it would be appropriate to expand more on what has happened and what the decision's impact truly is.

In the decision issued a few days ago, the TTAB cancelled the trademark "REDSKINS" (and five other marks) as a result of an appeal proceeding brought over by several Native American appellants who argued that the mark was disparaging to Native Americans, violating 15 USC 1052. The court found that at least 1/3 of Native Americans found the mark disparaging, satisfying the requirement under section 1052. As such the marks were cancelled; however this is not the end of the matter entirely.

Even after the mark has been cancelled the organization retains the rights in the marks during any appeal processes; something which Bob Raskopf, the trademark lawyer for the Redskins, has indicated they will do. Outside of the marks' registration the organization will still enjoy ample protection under both common law and federal legislation. Under 15 USC 1125 any person using of a mark to confuse the consumer as to its origins or quality, causing damage to the original user of that mark, can be held liable under the provision for damages resulting from that use. As such the Redskins could easily prevent the use of its mark even if their marks are cancelled. Under common law a mark is protectable through its use, or as was stated by Justice Pitney in United Drug Co v Theodore Rectans Co: "...the right to a particular mark grows out of its use, not its mere adoption; its function is simply to designate the goods as the product of a particular trader and to protect his good will against the sale of another's product as his". Through their extensive use of the Redskins mark since the team's beginnings in the 1930s, the team can protect the mark even outside of federal registration. This is highly important, and often forgotten.

A less offensive alternative?
It was however pointed out by Richard Biagi, a partner at a US intellectual property law firm, that: "[o]ne interesting twist is that owning a trademark registration is a requirement by Department of Homeland Security/US Customs in order to impound counterfeit goods entering the  US... So, it is possible that an overseas manufacturer of knock-off apparel or souvenirs bearing the REDSKINS mark could get their products through customs without any trouble – however, that still doesn't prohibit the NFL from suing the manufacturer for trademark infringement". A minor quibble, but worth mentioning in conjunction with the case.

As one can see the effects the decision potentially will have are minimal, at least in terms of the marks protection. The mark will be very much alive and worth protecting; however the negative perception of the mark and the team could damage its monetary worth. In addition 50 US Senators have put some pressure on the team to change its name in a recent letter to the NFL Commissioner Roger Goddell, further exasperating the team's current situation. The decision is symbolic at best, and it is still very likely it will be overturned on appeal.

The discussion surrounding the events has been lively, and has brought trademarks and their worth more into the consciousness of the general populous; yet the discussion has been riddled with inaccuracies as to the mark and its future and over its protectability as a result. Hopefully this article has cleared things up for some, and this writer for one will await the results of the forthcoming appeals process.

Source: Washington Post

18 June, 2014

APIs Protected By Copyright, Programmers Stand Aghast

The more and more information becomes digitized and hidden beyond a invisible wall to the layman in the form of code and programming languages, the more convoluted its application can become in the world of intellectual property law. One phenomenon of this world are APIs, or in other words, Application Programming Interfaces. APIs are software-to-software applications released by companies, like Google, which enable other developers to more easily access and use their services, such as embedding Google's search services onto a web blog allowing for readers to search the site more easily. Effectively it allows for the two applications to communicate between each other without any interference by the users themselves. APIs have been fought over for some time by the two tech giants, Google and Oracle, since 2012, and came to a head early last month in the US Court of Appeals.

The case, decided in May 2014, dealt with 37 API packages released by Oracle (at the time Sun Microsystems) which pertained to its Java platform. The two parties, Google and Oracle, attempted to reach an agreement to use the Java platform in Google's new mobile operating system, Android, but failed to do so eventually. Nevertheless Google developed its own similar platform to be used in Android, Dalvik, which consisted of over 160 APIs, of which 37 corresponded to the Java APIs in contention; something which Google had copied verbatim into its own code. Oracle subsequently took Google to court over copyright infringement, and in a decision by the District Court of California some two years ago the court saw that APIs were not copyrightable. Oracle appealed the decision, which ended up in the Court of Appeals last year.

Many developers' thoughts after the decision 
Under the 'merge' doctrine, if there is only a finite amount of ways through which an idea can be expressed it is said to 'merge' the idea-expression doctrine, or in other words, prevents copyright from protecting the expression as part and parcel to the idea. Should there only be a single way to implement said idea no copyright protection will be given to the merged idea. The District Court initially saw that Oracle could not protect its APIs as their expression was the idea, and could not be protected. On appeal the Court of Appeal saw different, deciding that the copied code could have been implemented in unlimited ways, not limiting the expression of the idea and warranting copyrightability. The declaration of the source code by Oracle therefore does not preclude its copyrightability, as was seen by the District Court initially. Even if the code consists of short phrases or sentences, i.e. lines of code, it does not preclude copyright protection.

Should the disputed APIs be merely a system or a method of operation, they cannot be protected under copyright. A myriad of cases have stated that programs and code cannot be protected by copyright; however the approach by the District Court was seen as being erroneous. Under the Court of Appeals' decision even though computer programs contain functional elements it does not fully leave out the possibility that they may contain elements which are protected by copyright. This does not completely cover the effect of the program, but merely the expression within that code for that function. Should Google have implemented that very function through a different expression, there would be no risk of infringement.

Google's last argument was for interoperability, in that the verbatim copying of Oracle's code was essential for the interoperability of Java and Android, initially supported by the District Court. However, the Court of Appeals saw differently, as precedent heavily approached interoperability as a fair use right, not as a requirement for copyrightability. This gave the final blow to Google's argument in the appeal case, with the Court of Appeals fully rejecting the District Court's initial decision and deciding that APIs could be protected by copyright.

Needless to say this decision has created quite the fervor and will undoubtedly be appealed on Google's part. The precedent set can be argued to be dangerous, and present a hurdle for the free development of technology, at least on the programming side. As more and more programs have to be able to interact with each other for a convenient, practical and fast experience for the consumer, locking down APIs can hinder this development quite significantly. Developers could be cherry-picked or even prevented from using certain APIs or even charged exorbitant amounts for their use; however this is pure speculation. Whether the case goes further will remain to be seen, and will set an interesting cloud over the programming sphere for the time being.

Source: Ars Technica

11 June, 2014

Copyright in Space - The Space Oddity

The worries of the 21st century artist are ones which no other before them has ever had to contemplate, nor even conceive. Due to this some interesting results can unfold in the world of copyright. Unbeknownst to most of us, our outer terrestrial conquests just might impact our creative output, or at least limit it to some extent.

Major Chris Hadfield, a Canadian astronaut who recent spent almost a half a year in space, recorded and shared his take on the David Bowie song "Space Oddity", receiving well over 22 million views on YouTube for the duration of the video's existence on the site. This particular video was made while he was on board the International Space Station, and thus leads us to a peculiar question begging an answer: does copyright apply in space?

The ISS is regulated under the International Space Station Intergovernmental Agreement, which sets out the framework in which the Station and the law operates. Although many other agreements expand on the framework outside of the ISSIA, it is the more important one within this context. As space is potentially beyond any particular jurisdiction, with the added complication of the ISS moving at 7,6 kilometers per second over most countries at any given time, which laws would apply to govern Mr. Hadfield's rendition? According to Article 5 of the ISSIA: "...each [country] shall retain jurisdiction and control over the elements [of the ISS] it registers". This means that any modules, parts of the ship and so forth (called elements), will be under the jurisdiction of the country which owns it (including The United States, Russia, Japan, and Europe respectively). It has been determined by The Economist that the elements in which Mr. Hadfield recorded his famous video would be ones owned by the US and Japan, subjecting his video to the copyright laws of those particular countries.

Phil was busy filming his modern interpretive dance video
Mr. Hadfield's music video does not in itself present much of a legal issue, as the rights for the distribution and recording of the song were duly negotiated between all interested parties; however it still remains a curiosity in the field. The licence for the YouTube distribution of the song has since ended, yet a new agreement is being sought for the continuation of said agreement to satiate our extra terrestrial musical needs.

Nevertheless, space still remains a big question mark, especially in the emerging markets of space tourism and our conquest for Mars or other planets. As J.A. Sterling discusses more in-depth in his article "Space Copyright Law: the new dimension", copyright will face challenges when being applied to our future outside of our blue planet. More specifically, which country's or countries' laws will apply if the work in question is created wholly or partially on another terrestrial body, such as Mars? If the work is created on a space ship or station, much like in Mr. Hadfield's situation, the application of laws is much easier, or at least potentially so; however should you film a video on Mars, it is uncertain which country's laws would apply. This only scratches the surface in relation to the difficulties space can cause in relation to the creation of copyrighted works, and I would advise anyone interested in the topic to read the article above.

In the end the loss of Major Hadfield's song, no matter how eloquent and beautiful it is, is but a temporary bump in the video's existence, which will undoubtedly continue soon (or so one can hope). Space is, indeed, the final frontier - or is it? Only out future beyond the comforts of our home planet will show where copyright will go, or how far at least.

Source: IP Brief

05 June, 2014

The United Kingdom (Finally) Updates its Copyright Exceptions

After what seems like a long year after first touching on the new recommended changes to the United Kingdom's ageing Copyright, Designs and Patents Act's exceptions, the UK government has taken its first steps to modernize its copyright scheme. Although only certain provisions will have come into force on June 1st, more specifically ones relating to research and private study, text and data-mining, education and teaching, archiving and preservation, public administration and accessible formats for disabled people, some will remain for further Parliamentary consideration. These are provisions dealing with personal copies for private use, caricature, parody and pastiche and quotation. Below I shall endeavor to expand more on the changes, and to elaborate more on the up-and-coming changes as well.

Research and Personal Study, Education, Libraries, and Archives

Although the provision for personal research and study has existed for a while, it severely limited the provision nonetheless, and merited expanding. What the now in-force Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations 2014 does is extend the scope of the provision, allowing for the use of broadcasts, films and sound recordings to be included which were omitted prior to the Regulations' introduction. This is a sensible change as leaving out these other mediums would hinder research endeavors, especially when the copying of digital versions of such works is easier than ever.

Aaron was excited for these changes - a bit too excited
The Regulations also extend the copying capabilities of libraries and archives, while adding educational institutions and museums to copy for the sake of their educational purposes. This is important as before museums and galleries for example, would have infringed copyright in the event that they made copies of works for their displays. In addition to allowing for the copying of newer types of works, the Regulations make express provisions for their use in dedicated displays in these institutions. This clearly aims to further legitimate educational purposes without the hindrance of copyright in doing so. Libraries also are given more express liberties in the distribution and replacement of works within their collections, and allows for librarians to make copies of copyrighted works for individuals for research and study needs within certain limits.

Copying for educational purposes is furthered by the new Regulations as well by creating a new exception for "Illustration for instruction". What this new exception allows is fair dealing for the purposes of education or instruction through newer, more modern means, unlike the current exception which only allows for this when copied by hand. The Regulations also allow for the copying of broadcasts and their distribution for educational purposes, further paving way for more modern, interactive learning methods such as distance learning or e-lectures. Educational institutions are also permitted to copy and distribute copyrighted works to their students and staff, provided only a maximum of 5% of the work is copied, and if the works are distributed via electronic methods, the communication has to be secure. Overall the Regulations clearly further education in the 21st century context, and allow for more effective, robust teaching even when not at University.

Public Administration

Change are made to how public bodies can utilize and distribute copyrighted content through the Copyright (Public Administration) Regulations 2014. The Regulations enable public bodies to copy and distribute copyrighted materials for the purpose of public inspection, and for those bodies to potentially distribute such works for the purposes of dissemination, provided the works are not commercially available. According to the Intellectual Property Office these changes are meant to "...enable more public bodies to proactively share some third party copyright material online, such as material submitted by an individual or business for the purpose of maintaining a public register". This is a significant improvement, as previously these bodies could have only distributed copyrighted works in paper form physically, and not digitally.

Disability Access

Little Horace was already busy making use of the changes
Copyrighted content is made more accessible to people with disabilities, potentially preventing them from accessing or utilizing copyrighted content in their original forms. The Copyright and Rights in Performances (Disability) Regulations 2014 allow for individuals to make personal copies of works in a format which would allow them to enjoy those works should their disability prevent them from doing so, such as making an electronic copy of a book if you are blind for use through screen readers. In addition to giving individuals this right the Regulations also allow for appropriate bodies to make such copies and to supply those to any person's who might need them. Clearly this significantly extends access to copyrighted content for people with disabilities, and fulfills a need which has been neglected under copyright legislation for quite some time.

Personal Copies, Parodies and Quotation

As said above, Regulations pertaining to copies made for private use, parodies and quotation are still under Parliamentary consideration. In a statement made by Intellectual Property Minister Lord Younger, the reason for the delay of these exceptions is purely because there are still "...some questions about the private copying and parody exceptions that [the Joint Committee on Statutory Instruments] would like to discuss with us". This process will delay the introduction of these instruments until at least October 2014.

What the up-and-coming Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 will allow is for the copying of copyrighted works for personal use, provided that the person owns a copy of these works prior to making the new copies. This would include both physical and digital copies which have been bought or gifted to the owner, and excludes any borrowed or rented copies and any streams or broadcasts. This is by far the most needed exception in today's world, and would allow for individuals to make copies of works and to take them with them in a more suitable format. This could be the burning of a CD onto a physical disc for taking with you on a drive, or the ripping of a CD onto your computer and then copying it onto your MP3 player.

Finally, the Copyright and Rights in Performances (Quotation and Parody) Regulations 2014 would allow for the quoting of copyrighted content for any purpose, so long as the content being quoted is available to the public and is not quoted beyond the needs of the work in which it is quoted. This extends the ability to use such content for a wider amount of purposes, and not just for criticism, review and news report as under the current exceptions. In addition the Regulation would add a new exception for parody purposes, something which has been lacking in the UK regime for quite some time.

All-in-all the new changes to the current scheme are welcomed and needed, albeit the delay with personal copying, quotation and parody is regrettable. As the world in which we use copyrighted content has changed, so should the law, and this is its first steps into the 21st century.