litigation

A federal appeals court will rehear a case in which a split three-judge panel ruled it was unconstitutional to prohibit non-commercial broadcast stations from selling political advertisements.

A federal statute, 47 U.S.C. § 399b, generally prohibits public broadcasters from airing “advertisements,” which the statute defines to include paid messages that (1) promote a for-profit entity’s…
Continue Reading 9th Circuit Will Rehear Challenge to Law Barring Public Broadcasters from Airing Paid Political Ads

The California court that is hearing Fox’s challenge concerning DISH’s Hopper set-top-boxes and related AutoHop feature has issued a decision denying Fox’s request for a preliminary injunction.  The Hopper can be used to automatically record primetime programming from the four major broadcast television networks, and the AutoHop feature allows viewers to automatically skip the commercials…
Continue Reading A Mixed Decision for Fox in the Hopper Case

The Supreme Court heard oral arguments Monday in Kirtsaeng v. John Wiley & Sons, Inc., a case addressing whether textbooks — and other copyrighted works — made abroad can be imported and sold in the United States without the copyright holder’s permission.

The Court’s decision will clarify to what extent § 109(a) of the Copyright Act — also known as the first-sale doctrine — applies to copyrighted works made outside the U.S.  The first-sale doctrine permits the legal owner of a copyrighted work to dispose of the work without the copyright holder’s approval.Continue Reading Supreme Court Hears Arguments in Foreign-Made Textbooks Case

A number of key developments affecting telemarketing emerged over the past week:

1.  The distinction between informational and telemarketing calls was further defined.  The 9th Circuit held that calls intended to impart information about a customer rewards program could be construed as “dual purpose” calls subject to federal and state telemarketing restrictions.  See Chesbro v. Best Buy Co., Inc.

2.  Effective dates were announced for the new requirements on autodialed and prerecorded calls that were adopted by the FCC in February 2012. 

  • Effective immediately:  all prerecorded “heath care” messages subject to HIPAA transmitted to residential lines are exempt from the FCC’s consent, identification, time-of-day, opt-out, and call abandonment requirements.
  • Effective November 15, 2012:  the FCC’s three percent call abandonment rate must be calculated on a 30-day basis for every telemarketing calling campaign.  (It is possible that the FCC will consider delaying this effective date to January 14, 2013, to align it with the interactive opt-out requirement discussed below.)
  • Effective January 14, 2013:  all prerecorded telemarketing calls must include an automated, interactive opt-out mechanism throughout the duration of the call, as well as a toll-free telephone number that can be contacted to opt out when a prerecorded telemarketing message is left on voicemail or an answering machine. 
  • Effective October 16, 2013:  prior express written consent is required to transmit prerecorded or autodialed telemarketing calls to wireless numbers, and the established business relationship exception no longer applies to prerecorded telemarketing calls to residential lines.
    Continue Reading Telemarketing Recap: Recent Key Developments at the FCC, FTC and in the Courts

Recently, Netflix settled a lawsuit brought by the National Association for the Deaf (NAD) that alleged that its online closed captioning practices violated the American with Disabilities Act (ADA).  As a part of the settlement, Netflix agreed to caption all of its “Watch Instantly” programming by September 30, 2014.  Until then, Netflix will provide a mechanism on its site for deaf and hard of hearing users to search for programming with captions. 
Continue Reading Netflix Settles Online Closed Captioning Litigation

Google and the Association of American Publishers (AAP) announced on October 4 that they have entered into a settlement agreement in a seven-year dispute over the search company’s Google Books Library project.  The project, which seeks to create a searchable digital archive of books from several major libraries around the world, has been the…
Continue Reading Google and Publishers Reach Settlement in Book Digitization Case

A long-running copyright infringement action by the Authors Guild (a non-profit authors’ organization) against Google has been temporarily placed on pause.  On Monday, the U.S. Court of Appeals for the Second Circuit granted Google’s unopposed motion for a stay pending its interlocutory appeal of class certification in The Authors Guild, Inc., et al. v. Google, …
Continue Reading Second Circuit Stays Google Books Case Pending Class Certification Appeal

A copyright-infringement lawsuit challenging the Google Books service will proceed in a New York federal district court, even while an appeals court considers whether the suit can proceed as a class action.

In an order filed Wednesday, Judge Denny Chin declined Google’s request to stay the district-court proceedings. Judge Chin granted class-action status to the plaintiffs in May, certifying a class consisting of “[a]ll persons residing in the United States who hold a copyright interest in one or more Books reproduced by Google as part of its Library Project.”  Google seeks to challenge the certification on the basis (i) that the proposed class representatives cannot adequately represent absent class members who benefit from the Google Books project (an “intra-class conflict”) and (ii) that Google’s principal “fair use” defense is unique to each individual work, defeating the Rule 23(b)(3) requirement that common issues predominate.Continue Reading District Court: Google Books Case Will Proceed While Class Certification Is Appealed

The past few years have witnessed a series of attempts by plaintiffs to apply the Video Privacy Protection Act (“VPPA”) — a statute passed in 1988 to protect against certain disclosures of video rental records — to the video distribution technologies of today.  For example, in Sterk v. Redbox Automated Retail, plaintiffs sued the video kiosk operator for violating the VPPA’s prohibitions against disclosure of video rental data and prolonged retention of such data.  (The Seventh Circuit threw out the retention claim after an interlocutory appeal of the district court ruling, but the disclosure claim is still pending.) 

Mollett v. Netflix, a suit filed under the VPPA (and an analogous California statute, Cal. Civ. Code. § 1799.3) involved yet another attempt at applying the statute in a way that its drafters could not have envisioned.  Noting this and several other infirmities in the complaint, Judge Davila of the Northern District of California dismissed the suit earlier this week. Continue Reading Court Dismisses VPPA Suit Against Netflix

Google may appeal a New York federal district court’s decision to grant class-action status to a copyright-infringement lawsuit challenging the Google Books service, the U.S. Court of Appeals for the Second Circuit ruled Tuesday.  The Authors Guild, Inc. v. Google, Inc., No. 12-2402 (2d Cir. Aug. 14, 2012).

Google launched its Google Books Library Project in 2004, when it reached agreements with several major research libraries allowing Google to digitally scan the libraries’ collections, which Google then displayed in an online, searchable database. Many works in the Google Books database remain under copyright and were scanned and displayed without permission from copyright holders.Continue Reading Appeals court allows Google to challenge class certification in Google Books suit