Matt Schruers

As the IP nerd vigil over Aereo continues, let us take a minute to survey what potential outcomes might look like.  So, if World Cup prognostication isn’t for you, this post should get you started on the next best thing: Supreme Court tea-leaf reading.

The Court’s Aereo decision will issue on a Thursday or Monday between now and June 30.  The case could be resolved as early as tomorrow morning, but the fact that it was argued so late in the term may produce a correspondingly late decision date.  I’ll assume you know how Aereo got to the Supreme Court; if not, try this post and infographic surveying the Aereo litigation. Below I describe how the most probable outcomes would look, plus a few unlikely results.

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Last year I wrote on the question: ‘how long can copyright holders wait to sue?’  The issue animated a case decided by the Supreme Court today, Petrella v. MGM, where the plaintiff had waited 18 years to file her suit.

The quick answer, of course, is that copyright’s statute of limitations (17 U.S.C. 507(b)) is three years.  (A statute of limitations is what it sounds like: it is the part of the law that limits how long a plaintiff has to file a civil lawsuit.  After that time has elapsed, they are out of luck.)  The more complicated answer, at issue in this case, is that a copyright holder can wait a very, very long time, provided the infringement is ongoing.  Petrella inherited the rights to renew her father’s two screenplays and memoir about his friend, champion boxer Jake LaMotta, later adapted into the Academy Award-winning Scorsese/De Niro film Raging Bull, but then didn’t bring suit for nearly two decades.

MGM invoked laches, arguing that Petrella should lose since she unfairly delayed in bringing her claim.  Laches is an equitable doctrine, an ancient rule of fairness.  It represents the idea that plaintiffs shouldn’t be allowed to benefit from their own delay.  It isn’t part of the Copyright Act, but rather a general principle.  Two lower courts sided with MGM’s argument, but the Supreme Court reversed today in a 6-3 decision by Justice Ginsburg. MORE »

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This is the fifth and final post in a series on Oracle v. Google. [Previous posts: 1, 2, 3, 4]

Jon’s posts on the Federal Circuit’s Oracle v. Google decision Friday and yesterday covered most of the bases, and other accounts have not been any more charitable. In fact, most have been less so. (e.g., this, this, or this).

Jon’s post alluded to an extraordinary strawman in the court’s opinion, but it needs to be appreciated on its own.  The Federal Circuit contends that parties before it “seem to suggest that software is or should be entitled to protection only under patent law – not copyright law.”

This is surprising, because no one said that.  In fact, as Jon pointed out, Google’s counsel said precisely the opposite.  How do we know this?  You didn’t have to sit through the oral argument; the Federal Circuit itself quotes him saying “it is not our position that none of Java is copyrightable.” (opinion at p. 29)

So, having quoting that, its rather odd to turn around and say, as the Federal Circuit does, that it is being invited to say none of Java is copyrightable, and is only patentable.  (opinion at pp. 68-69)   MORE »

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*Update:  More analysis from Jon Band here.*

The Federal Circuit’s Oracle v. Google decision over copyright in the Java APIs is out.  If you’re looking for a quick or simple resolution to this dispute, you’ll be disappointed.

Back in December when the Oracle v. Google case was argued before the Federal Circuit, my colleague Jon Band (with whom I co-authored a brief in the case) offered some observations based on the oral argument, which ran a full 30 minutes late, as the 3-judge panel grilled the party’s lawyers on questions of copyright, infringement, and fair use.

Jon noted the many complexities in the case, the continuing importance of the question of fair use, and predicted that the case was far from over.  Today’s opinion confirms all of those assessments: the Federal Circuit issued a lengthy, 69-page opinion, affirming in part, reversing in part, and also sending the case back to the trial court for an entirely new trial on the complex factual questions around the four fair use factors.

In short, the opinion reverses the district court’s finding that the structure, sequence, and organization (SSO) of Java’s APIs was not copyrightable, setting up an apparent circuit split that could go to the Supreme Court.  It further holds that Google’s use of Java API packages in Android infringed the Java copyrights, and also that Google’s fair use defense needs further exploration.

The court’s opinion begins its discussion by noting that it is “mindful that the application of copyright law in the computer context is often a difficult task”, repeating the oft-cited quote from Judge Boudin in Lotus v. Borland that “Applying copyright law to computer programs is like assembling a jigsaw puzzle whose pieces do not quite fit,” but ultimately concludes that, in this case, the Java APIs were copyrightable, and infringed.

Stay tuned for further analysis from Jon…

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The transformative and occasionally disruptive effect of the Internet on traditional news publishing has been widely discussed, and as DisCo has previously covered, some European states are reacting to these changes with a form of tax-and-subsidy system that would benefit domestic news publishers at the expense of mostly foreign Internet services.

France and Germany have both made efforts in this direction, and in February the Spanish government began considering a similar proposal.  A provision appearing late in the development of Spain’s ongoing reform of its IP laws would subject normal Internet snippets — i.e., quotations — to a special “ancillary” copyright. MORE »

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Today, the U.S. Supreme Court will hear arguments in the case of ABC v. Aereo – a dispute which has been billed as likely to shape the future of television.  As earlier coverage here at DisCo has explained, the case also has the potential to alter the future of the Internet, and specifically, cloud-based services.

This copyright case revolves around the New York-based start-up Aereo, who provides arrays of Internet-attached antennae to subscribers, who each use an individually-assigned antenna to access their free local broadcasts, online.  Major U.S. broadcasters don’t like this, since cable services now pay them handsomely in order to carry those broadcast signals to cable subscribers.  Broadcasters have argued that Aereo infringes copyright by enabling its users to access their local broadcasts online in this manner. MORE »

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If you want to understand why excessive contenting “windowing” forces consumers to choose between convenience and copyright compliance, Farhad Manjoo’s New York Times piece last week, “Why Movie Streaming Sites So Fail to Satisfy,” is a great start.  Manjoo explains why, as a result of windowing practices — in addition to licensing complexities — “we aren’t anywhere close to getting a service that allows customers to pay a single monthly fee for access to a wide range of top-notch movies and TV shows.”

If you don’t have the time, try this Venn diagram.Everything-You-Need-to-Know-About-Content-Windowing

 

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This post is part of the Disruptive Competition Policy Forum recap series.

Details below. MORE »

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The perpetual Apple vs. Samsung smartphone smackdown returns to court today, with the latest round of litigation beginning jury selection in San Jose.  As Ev Ehrlich argues at SFGate, the ongoing litigation doesn’t bode well for smartphone innovation.

While this particular offensive does not include any of the ridiculous rounded rectangle design patents that characterized some of Apple’s previous attacks, it nevertheless illustrates some of the continuing problems in the patent system.  While I will leave it to Patent Progress and others to dig through the claims, it bears noting that one of the patents at issue, Apple’s autocomplete patent, seems to be a variant of “+ Internet” patenting that DisCo has described before — the practice of filing claims on known functionality (autocomplete), situated it in a next context (touchscreens).  This Mad Libs approach of patenting seems to tax every generation of technological innovation, from combustion engines to computers to the Internet, and now smartphones.

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Todd Spangler’s piece in Variety yesterday argues that the Supreme Court’s upcoming Aereo case has nothing to do with the cloud.  As Aereo’s day in court approaches, it is being preceded by a wave of “denialism” — grand assurances that a broad interpretation of the Copyright Act’s public performance right won’t affect the growing cloud computing industry.

The only unifying characteristic I’ve discerned among the deniers is that none of them are actually in the business of providing cloud services.

As my Aereo primer pointed out, the outcome of this case can have a grave impact on cloud computing.  Spangler tells us this isn’t the case, however, and waves off “the idea that Aereo is akin to Dropbox.”  As far as I can tell, however, no one except Spangler is saying Aereo is the same as Dropbox.  The point is — as my primer post explains — that when the broadcasters describe why Aereo is infringing, the broadcasters could just as easily be describing what happens when you stream your own files from your cloud account.  The broadcasters urge what is essentially a legal fiction: that multiple private transmissions of the same work over the same system, even at different times, should be aggregated into one single public performance.  Unfortunately, and probably entirely by accident, this argument seems to apply to cloud music lockers as much as it describes Aereo.  A service need not resemble Aereo (or Dropbox) to be endangered by a poorly-reasoned Aereo decision. MORE »

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