Aereo: Emerging Technology and Copyright Law

It’s that time of year again in Washington, D.C. The birds are chirping, the cherry blossoms are blooming, the heat and humidity are rising, and the Supreme Court’s issuing the final decisions of the year. This morning, the U.S. Supreme Court issued its 6-3 decision in American Broadcasting Companies v. Aereo.* Justice Stephen Breyer wrote for the majority, while Justice Antonin Scalia dissented. The Court’s opinion found that Aereo infringed TV broadcasters’ exclusive public performance rights under the Copyright Act (1976) by allowing subscribers to stream content (watch TV programs online) which other viewers watch the same programs on TV. Aereo’s technology involved the use of many mini antennae to essentially tap into an existing TV broadcast of a show, copy that show to a computer folder for the subscriber, and stream that show to the subscriber online in real time. So you could subscribe to Aereo, pick your show (say, Downton Abbey on PBS), and watch it online while other people were watching it at home on TV.

The Court found that Aereo violated the Copyright Act by publicly performing TV shows that only the TV broadcasters had rights to publicly perform. The Court saw Aereo as not a mere “equipment provider,” but “overwhelming[ly]” like and “highly similar” to a cable TV company, providing shows on demand, “targeted by the 1976 amendments [to the Copyright Act.]” The decision isn’t a huge surprise given the skepticism several Justices expressed at oral argument of Aereo’s business model. So Aereo’s fledgling business model is either shut down upon being declared illegal, or its development and evolution is dependent on what Justice Scalia calls “good lawyers” (“what we have before us must be considered a ‘loophole’ in the law. It is not the role of this Court to identify and plug loopholes. It is the role of good lawyers to identify and exploit them, and the role of Congress to eliminate them if it wishes. Congress can do that … in a much more targeted, better informed, and less disruptive fashion that the crude ‘looks-like-cable TV’ solution the Court invents today”) (Slip Dissent at 12).

Justice Scalia’s dissent argues that Aereo isn’t really like a cable TV company. He says Aereo doesn’t perform TV shows because it doesn’t choose the content (Aereo subscribers choose their individual content). He’s also concerned that the Court’s “cable-TV-lookalike rule” is “nothing but the’ol’ totality-of-the-circumstances test” – e.g. there’s no clear rule for whether a cloud or cable TV service does (or doesn’t) violate the broadcasters’ public performance rights.

Taking a step back from Aereo, part of the issue involves the Copyright Act’s age (38 years old) vis-a-vis the extremely rapid development of technology. In the proverbial phrasing, the Copyright Act is my grandfather’s copyright law – I have his marked up copy of the 1976 Copyright Act from his law practice. Yes, the copyright law has been interpreted to try and keep up with the times (e.g. email, YouTube, the Internet, the cloud, Facebook, etc). But the law’s terms of art and concepts haven’t changed much (if any) since 1976. I have a deep respect for history and tradition, but, given the state of the copyright art (or patent art) in 1976 vis-a-vis 2014, one must ask if a nearly 40 year old conception of technology still works today. The technological world, and the potential universe of copyright protection, has changed dramatically in the past year or two, let alone the past 40. In 1976, personal computers, email, mobile phones, digital cameras, texting, social media, Facebook, LinkedIn, Instagram, YouTube, video and file sharing didn’t exist. Businesses and people used typewriters, landlines, TV, and the U.S. Mail. We’ve come a long way as a society, some industries have been shaken, and others have come of age. And yet, our copyright laws may not reflect the brave new technological world we live in, the new economies of content and IP. Perhaps it’s time for Congress to take Justice Scalia’s hint and update the copyright law for our new century?

My law firmJohnson Law KC LLC, has experience working with individuals, companies, and nonprofits on state and federal trademarks. If I can help you navigate the waters of copyright law, give me a call (913-707-9220) or email me (steve@johnsonlawkc.com) for a free, convenient consultation.

(c) 2014, Stephen M. Johnson, Esq.

* Justice Breyer, a former Harvard Law professor, wrote a law review article called “The Uneasy Case for Copyright” (1970). Justice Breyer’s opinion was joined by Chief Justice John Roberts, and Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Justice Antonin Scalia’s dissent was joined by Justices Clarence Thomas and Samuel Alito.

Washington Redskins’ Trademark Cancelled – Deja Vu?

So reports the NYT on a decision by the Trademark Trial and Appeal Board (TTAB, in trademark lingo). Some Native American groups filed a lawsuit to cancel the NFL team’s long standing trademark (dating to 1967 and 1990) by alleging that the mark disparages people, or brings them into contempt or disrepute. And that Court said yes, the trademark is disparaging to Native Americans, so it should be cancelled.

Trademark Law 101

By way of background, U.S. law grants trademark protection to marks (e.g. logos, slogans, pictures, or phrases) used continuously in the stream of commerce in a particular context by someone in a distinctive way. So if you have a logo or slogan that you use on your website, business card, letterhead, company shirts or hats, or other items, you can get a limited monopoly (a trademark) to use that logo or slogan, and prevent others from using it in the same context or other contexts where it would be confusingly similar to an average person. (Note confusingly similar is different from the parallel copyright and patent law infringement standards.) Protected trademarks are labelled “TM” or “®” and service marks (usually slogans) are labelled “SM.” International trademark protection arises under a different, but related legal regime. Individual states also offer trademark protection, for substantially less cost than U.S. trademarks, but state protection only applies within the state’s borders.

No Trademark Protection/Canceling Trademarks

But trademark protection can’t be granted for marks that are immoral or scandalous, that disparage people, or that bring people into contempt or disrepute. IP lawyers have read the (amusing) cases and seen the pictures of various logos and slogans that didn’t make the cut. This decision indicates that the controversy over the NFL team’s name and alleged disparagement of Native Americans may be percolating into making race or ethnic background into a category of banned trademarks (the previous challenge of the Redskins’ trademark appears to be the first trademark cancellation for race or ethnic background). That may be a positive trend – Americans probably don’t want someone trademarking a neo-Nazi logo or a racial slur. It may also reflect a new legal cause célèbre (over other, less worthy or socially sympathetic causes) – one can’t easily imagine a group of pirates winning a disparagement lawsuit to cancel the Captain Morgan’s Rum trademark. The Founding Fathers (or modern politicians) couldn’t trademark mud slinging logos or slogans attacking their opponents. But how far do we go? Canceling a trademark is a step towards curtailing or banning products or manifestations of people’s free speech and press. And the Courts (and American people) have traditionally taken a broad, liberal view on free speech and press.

Stare decisis

Canceling a trademark 24-47 years after the U.S. trademark protection was granted raises a precedent or reliance question. Was the mark always disparaging or scandalous or casting a bad light on people? If it was originally ok, when did it go bad? Have people come to recognize and rely on the mark as a sign of bona fide goods or services (e.g. authentic NFL apparel, a professional football team, etc)? Canceling a trademark a generation after the fact begs the stare decisis question – Latin/legalese for “let the decision stand,” respect for precedent. Courts are reluctant to overrule previous decisions just because a party says (or even proves) they got the law wrong before. Law requires stability and order, which you don’t get if you reverse or change every bad legal decision ever made. In several high profile cases, the Supreme Court has refused to overrule a decision that was admittedly bad law because people had come to rely on it. Other times, the Court will overrule a case because things have changed or the old case burdens rights or liberties. Does a similar principle apply to trademarks and consumers? Should it?

Déjà Vu and Appeal

As the article notes, the Washington Redskins’ trademark lawyer anticipates appealing the ruling, and he says this is déjà vu – they’ve been there, done that on trademark cancellation some years ago. And even if the trademark is cancelled, the team could still use the name, logo, and other manifestations of the mark – they just wouldn’t be protected under federal law from infringement (e.g. unauthorized use by others), which could cause confusion for consumers.

This KC Business Journal article explores the implications for the Chiefs, our hometown NFL team. Forbes has this article. KCUR, KC’s NPR affiliate, had this report. UCLA Law Prof. Eugene Volokh had this analysis. And The Wall Street Journal and NYT have dueling editorials – NYT and WSJ.

My law firm, Johnson Law KC LLC, has experience working with individuals, companies, and nonprofits on state and federal trademarks. If I can help you navigate the waters of trademark law, give me a call (913-707-9220) or email me (steve@johnsonlawkc.com) for a free, convenient consultation.

(c) 2014, Stephen M. Johnson, Esq.

Supreme Court: Settlement Risk Ideas Not Patentable

The U.S. Supreme Court today continued its recent interest in reviewing patent cases, ruling unanimously (9-0) (by Justice Clarence Thomas) that software designs for using computers to mitigate settlement risk in financial transactions are not patentable because they embody only abstract ideas (Alice Corp v. CLS Bank Int’l). The Supreme Court affirmed the Federal Circuit’s denial of the patent (the Federal Circuit is a specialized federal court of appeals based in Washington, D.C., which handles patent cases). As the Court explains, for an idea or invention or process to be eligible for a patent, it must move beyond the abstract stage to the practical application stage – is it novel, does it instruct another person learned in the art, it is non-obvious, etc? So no settlement risk patent. Additional coverage and analysis from the Patently-O and How Appealing blogs.

Chief Justice John Roberts expressed interest in technology cases early in his tenure on the Court,  and sure enough, the Court has been taking on numerous patent cases from the Federal Circuit. None of the Justices have the technical, scientific, or engineering background usually associated with patent law, so why the interest? One reason may be the rise of software patents like the one at issue in today’s case, with increasingly complicated code and algorithms. Traditionally, a patent was awarded for an inventor’s ingenuity in producing the proverbial better mousetrap. But since the 1990s, with the rise of computers and the digital age, more patents are being issued for computer driven processes, methods, and software – things that might traditionally been the dominion of the copyright law. In today’s case, the patent didn’t involve any people – just computers sending data back and forth, to lower risk in financial transaction, semi akin to some hedge funds, high frequency trading, or other electronic-only financial innovations. If the patent bar believes the rise of software patents is a bad thing or weakens the quality and rigor of patents generally, and they’ve won some allies in the judiciary, the Court may be stepping in more often to send a signal to the USPTO, Congress, and people seeking these patents that they’re not eligible under America’s patent law. A sort of “nice try, but no cigar, go back to the drawing board.” In being the final interpreter of U.S. law, the Supreme Court’s job includes resolving lower court conflicts (so federal law is uniform on the books and in application); checking and balancing excesses in lower courts (e.g. reversing the Ninth Circuit or others when they misread or misapply the law); ensuring rights, liberties, federalism, and separation of powers are respected when politicians get bad ideas; striking down laws that violate the Constitution; and sometimes sending signals to Congress or Governmental agencies (e.g. this statute has a hole, so fix it; or don’t grant patents to inventions like this).

If my firm, Johnson Law KC LLC, can help you, your business, or your nonprofit with IP or patent litigation, call me (913-707-9220) or email me to schedule a free, convenient consultation.

(c) 2014, Stephen M. Johnson, Esq.

YouTube music terms for aspiring artists

For aspiring music artists, posting songs to YouTube, iTunes, and other online music services is important. But according to this Daily Mail (UK) article, YouTube is about to launch a subscription music service requiring many independent musicians to agree to its terms, or be left behind. The article mentions that many big well known artists haven’t yet agreed to YouTube’s new terms. Have you, or your band, agreed to YouTube’s terms? Forbes has this article with more.

My law firm, Johnson Law KC LLC, has experience working with aspiring artists, songwriters, musicians, and authors in Kansas City. If my firm can help you navigate YouTube’s new music terms, give me a call (913-707-9220) or email me (steve@johnsonlawkc.com) for a free, convenient consultation.

(c) 2014, Stephen M. Johnson, Esq.

 

The Public Domain: “It’s Elementary, My Dear Watson…”

Yesterday, 16 June 2014, a unanimous (3-0) panel of the 7th Circuit Court of Appeals (based in Chicago), handed down this decision by Judge Richard Posner in Klinger v. Conan Doyle Estate, Ltd. (Judge Posner was joined by Judges Joel Flaum and Daniel Manion.) The Court decided against the Conan Doyle Estate in its copyright appeal. As UCLA Law Professor Eugene Volokh aptly observes, most of the Sherlock Holmes canon is now in the public domain (e.g. it can be freely used or remixed for derivative works).

Mr Leslie Klinger had co-authored a successful Sherlock Holmes anthology, so he and his co-author naturally wrote a sequel, and found a publisher. The Estate of Arthur Conan Doyle (1859-1930) sued and tried to prevent the book’s publication, or alternatively, to get a licensing fee (a seemingly small $5,000 fee). It turns out that while most of the Sherlock Holmes stories are in the public domain (having been published from 1887 to 1927), 10 stories remain under copyright protection until 2018-2022. And don’t forget the successful movies (Warner Brothers’ Sherlock Holmes (2009) and Sherlock Holmes: A Game of Shadows (2011)) and TV shows in the U.S. (CBS’ “Elementary,” 2012-present) and the U.K. (the BBC’s “Sherlock,” 2010-present) that derive from Sir Arthur’s ingenious characters or plots. The Court found that since all but 10 of the original stories are in the public domain, a new derivative work (like an anthology or TV show) can be done without paying a licensing fee or infringing the Sherlock Holmes copyright, as long as the new derivative work uses only public domain material, not material that would “round” out the characters from the later (still copyrighted) stories. Judge Posner reminds us of character development in Shakespeare’s plays (a la Sir John Falstaff and Henry) and Star Wars Episodes I-VI, though the same analogy also works for British novelist Agatha Christie’s Hercules Poirot oeuvre, the Lord of the Rings, the Chronicles of Narnia, Tom Clancy’s Jack Ryan character, or any author who develops his or her characters over time across works.

Note that Judge Posner’s opinion only covers the American copyright in the Sherlock Holmes oeuvre, not the British copyright. American copyright law terms are governed by the Copyright Extension Act (1998), as read through the lens of the Digital Millennium Copyright Act (1998), and is copyright protection is triggered by listing “(c), 201_” and the author’s name, often along with “all rights reserved.” To enforce an American copyright, it must be registered with the Library of Congress, even though copyright exists in any creative expression set down in tangible form at the moment of creation. British copyright law, by contrast, is governed by the Copyright, Designs and Patents Act of 1988, and is triggered by listing “the right of [the author] to be identified as the author of this work has been asserted by him/her in accordance with the Copyright, Designs and Patents Act 1988.”

If my law firm, Johnson Law KC LLC, can serve you, your company, or your nonprofit organization with copyright needs, please call (913.707.9220) or email me (steve@johnsonlawkc.com) to schedule a convenient free consultation.

(c) 2014, Stephen M. Johnson, Esq.