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Joshua Williams

A three-judge panel of the Ninth Circuit Court of Appeals heard oral arguments on Tuesday in the so-called “Aereokiller” litigation.  The case tests whether services that allow subscribers to stream broadcast television on their computers and mobile devices infringe the exclusive right of copyright owners to publicly perform their copyrighted works.  Specifically, the Ninth Circuit will decide whether to uphold a December 2012 district court decision granting a preliminary injunction sought by NBC, ABC, CBS, Fox, and others to stop FilmOn X LLC (formerly known as Aereokiller) from re-transmitting broadcast television to its subscribers without a license.

The key legal issue in the case is whether FilmOn’s re-transmission of broadcast TV programming constitutes a public performance or a private one.  Copyright owners have the exclusive right to publicly perform their copyrighted works, but cannot stop the private performance of their works.  At oral argument, counsel for FilmOn argued that the company provides only private performances, as it re-transmits broadcast TV programming to each of its subscribers via individual antennas and DVRs.  As one of the judges on the Ninth Circuit panel observed, FilmOn appears to have chosen the individualized antenna and DVR system for the specific purpose of attempting to circumvent the prohibition on publicly performing copyrighted works without a license.Continue Reading Oral Arguments Tee Up Widely Anticipated 9th Circuit Decision in “Aereokiller” Case

On Tuesday, the Supreme Court issued its opinion in Kirtsaeng v. John Wiley & Sons, Inc., resolving a long-simmering debate by holding that copyright’s first-sale doctrine applies to copyrighted works lawfully made anywhere in the world.  The upshot is that someone who buys an authorized, foreign-made copy (Kirtsaeng involved a foreign version of a textbook) is free to resell that copy in the U.S. without the copyright owner’s permission.

As we explained in a previous post, the crux of the issue is the interplay between the Copyright Act’s “importation” provision (section 602(a)(1)) and its “first-sale” provision (section 109(a)).  Generally, a copyright owner has the exclusive right to distribute copies of the copyrighted work.  The first-sale provision, however, creates an exception to that right: it provides that someone who owns a particular copy “lawfully made under this title” (i.e., lawfully made under the Copyright Act) has the right to sell that copy without permission from the copyright owner.  Finally, the importation provision says that if you acquire a copy outside the U.S., importing that copy into the U.S. without the copyright owner’s permission infringes upon the owner’s exclusive right to distribute copies.


Continue Reading Supreme Court Clarifies Broad Geographic Reach of Copyright’s First-Sale Doctrine

Last week, the Federal Communications Commission (“FCC”) adopted a notice of proposed rulemaking (“NPRM”) proposing to require facilities-based originating long-distance voice service providers to collect, retain and report on phone call answer rate data to rural and non-rural areas.  The NPRM also proposes to prohibit both originating and intermediate voice service providers from causing so-called “false audible ringing,” in which the caller hears the phone ring before the terminating provider has signaled that the called party has actually been alerted to the incoming call.  The NPRM was adopted in response to concerns expressed in various quarters, including on Capitol Hill, about the reliability and quality of long-distance telephone calls to rural parts of the U.S. 
Continue Reading FCC Proposes New Rules to Address Call Completion Complaints