Thursday, November 18, 2010

A Twist of LimeWire - Infringer Pirated

Following the decision that LimeWire’s peer file-sharing network infringed copyrights in a lawsuit filed by the Recording Industry Association of America, Judge Kimba Wood issued a permanent injunction against the company on October 26, 2010. The injunction was granted with LimeWire's consent.

In the 17 page order, the Court did go through the permanent injunction factors from the Salinger case in the Second Circuit. You can see the entire injunction here.

The Court found that LimeWire would be unlikely to be able to pay the statutory damage award. If LimeWire were not permanently enjoined, it would continue to facilitate “generations of infringement.” The RIAA would also be harmed because LimeWire would offer the copyrighted works that plaintiffs sell for free, thereby significantly affecting the market for the copyright owners’ works.

The Court also found the statutory damage award was not an adequate remedy at law especially to prevent future infringements and this factor favored a permanent injunction.

Because the Court found LimeWire’s business model was infringement, the balance of the hardships clearly favored plaintiffs. Finally the Court found that a permanent injunction serves the public interest by upholding copyrights and the harm caused by LimeWire.

In effect, LimeWire’s network has been shut down.

However, according to news reports, there is a software sharing program called LimeWire Pirate available on downloading sites on the Internet.

LimeWire has posted a notice on its website claiming it has recently become aware of third parties using the LimeWire name. The notice also includes a cease and desist to all parties using the LimeWire software, name and trademark.

Thursday, November 11, 2010

Supreme Court Hearing on Copyright First Sale - November 8, 2010

I was in attendance at the Supreme Court on Monday, November 8, 2010 for the hearing in the Costco v. Omega matter. You can read the transcript of the hearing here.

It was interesting to hear the judge’s questions on the first sale doctrine and its applicability to copyrighted works made and distributed abroad.

A couple of non-substantive observations. (Disclosure: I have worked on this case on behalf of Omega from 2004 – present)

The outside of the courthouse is well-kept and architecturally stands out (even in Washington DC surrounded by other similar inspiring buildings including the Library of Congress, Capital Building and the Senate and House office buildings.

The building itself is celebrating its 75th Anniversary. The huge halls and columns inside are majestic but in some ways only lead up to disappointment once entering the courtroom itself. The courtroom is small. The seating capacity could not have been over 250 people. The vaulted ceilings may make everything seem small but there were relatively few rows of seats. (Some were bench type seating while chairs in rows and on ends of benches comprised the remainder of the seats.) I have been to circuit courts with more abundant seating.

The justices themselves were well prepared and were engaging with questions. Given the serious nature of Supreme Court proceedings in general, I was surprised that there were a couple of moments of laughter (where Justice Breyer indicated that even he had to draw the line somewhere and Justice Scalia quipped, "Let me write that down.").

Relatively speaking, the hour went by fairly quickly with three speakers, Aaron Panner for Respondent Omega, Roy Englert for Petitioner Costco, and Malcolm Stewart for the United States in support of Respondent.

A decision will be made before the end of June.

Wednesday, November 3, 2010

Contributory Infringement or Settlement Negotiations?

On Saturday, Cablevision and NewsCorp, owner of the Fox television stations, settled their ongoing dispute over programming fees.

During the two week long battle, in which over 3 million Cablevision customers in the New York/Philiadelphia area were without News Corp's channels, Fox apparently sent a cease and desist letter to Cablevision accusing the company of copyright infringement.

Fox is accusing Cablevision of contributing or vicariously infringing on its copyrights by having the Cablevision service representatives advising its customers how to obtain content from Fox (and its other networks such as National Geographic Channel and Fox Business) via networks such as Ivi.

Ivi offers a subscription based service which delivers television live over the internet. Unlike websites such as Hulu, where someone can access episodes of previously aired shows, the Ivi player shows the original broadcast of whatever the television stations are airing at the time.

No specific companies were named in the letter, which can be seen here. However, Fox is part of a group of broadcasters, who include ABC, NBC, and CBS among others, who last month sued Ivi for copyright infringement. The case is WPIX Inc v. Ivi Inc, 10-7415, Southern District of New York.

Fox will likely need to show that Cablevision knew that it was inducing others to infringe on Fox’s copyrights. It may also need to show that Cablevision knew or instructed its customer services representatives to advise its customers how to obtain the programming.

Could the actions of Cablevision be further complicated if Cablevision was aware or received complaints about the Ivi website as either an Internet provider (unlikely due to the safe harbor provisions as currently interpreted by the Court in Viacom v. YouTube) or as a content provider themselves (Cablevision's subsidiary Rainbow Media Holdings owns such networks as AMC, IFC and the Sundance Channel)?

Was this a mere ploy by Fox to settle on more favorable terms? Could Cablevision bring a declaratory judgment action for a finding that it is not infringing on Fox’s rights? Now that an agreement has been reached by Fox and Cablevision, will Fox follow through or stop pursuing the claim for copyright infringment?