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What Matters--And Doesn't--About Google's Fair Use Win

Forbes contributor Eric Goldman writes that Judge Denny Chin's decision last week that Google's book-scanning project is a fair use under copyright law is a big deal in some ways and a not so big deal in other ways.

Among the ways that the ruling is a big deal:

1. It strengthens Google's position as the go-to search engine.

2. It adds to the canon of search engine law (of which there is not a lot).

Among the ways that the ruling isn't a big deal:

Fair-use rulings are specific to each case so "it would be a mistake to overassume the opinion’s broader implications for fair use on the Internet," Goldman opines.

 

Free Trade Deal Could Threaten Aereo's Business Model

Ars Technica reports on the leak of draft language of a proposed free trade deal, the Trans-Pacific Partnership, between the United States and several other countries, including Australia, Brunei, Chile, Malaysia, New Zealand, Peru, Singapore, Vietnam, Japan, Mexico, and Canada.

The draft's proposals include:

* imposing limitations on retransmissions of television signals on the Internet without the authorization of copyright holders (Aereo and its rival FilmOn X say their streaming services don't violate copyright law because they use individual antennas for each customer to retransmit free broadcast TV on-line);

* extending copyright law in other countries to last for the life of the author plus 70 years;

* and a six-strikes regime "that could ultimately lead to customers suspected of copyright piracy being kicked off their ISP."

Judge Rules Google's Book Scanning Project Is Fair Use

Google's book-scanning project has been ruled to be a fair use that doesn't violate copyright law, GigaOM reports.  Judge Denny Chin, who now sits on the Second Circuit, ruled that the digitization of the books did not violate the authors' copyrights because the scanning project is "'highly transformative' and because it didn’t harm the market for the original work," GigaOM also reports.

Reshaping Copyright Law's Contours Isn't Aereo's Only Problem. There's the Electric Bill Too.

The unseen part of the digital economy is how much power it takes for Google and Amazon and Facebook and Netflix to be available to us all the time, whenever we want. Aereo, one of the streaming services retransmitting broadcast TV over the Internet, also faces a huge electrical bill. The Wall Street Journal estimates that 90,000-135,000 subscribers in New York City could cost Aereo $2 million a year. The Journal further reports: "Power is 'one of the biggest challenges' the company faces, [CEO Chet] Kanojia said, adding that one option he is considering is getting off the grid and generating power using fuel cells."

Broadcasters are challenging Aereo's streaming service in the U.S. Supreme Court, arguing it is infringing their copyrights in their programming.

Cable Companies Consider Going The Way of Aereo

At least three cable companies are considering circumventing the billions of dollars of retransmission fees they have to pay to broadcast TV companies by capturing free broadcast-TV signals themselves, Bloomberg reports. The cable companies would be mimicking the business model of Aereo and FilmOn X, which have developed Internet streaming services in which they retransmit free broadcast programming to subscribers through individualized antennas. A case in which Aereo's business model was found not to violate copyright law is now pending before the U.S. Supreme Court for the high court to consider hearing the appeal.

Bloomberg also reports that "retransmission fees in the United States are expected to double to $6.1 billion in 2018 from $3.01 billion this year."

Aereo CEO's 'Back of My Napkin Plan' Got to U.S. Supreme Court in 20 Months

Chet Kanojia, CEO of television Internet streaming service Aereo, said that his business model of transmitting free broadcast television on the Internet through individual antennas dedicated to each subscriber “has gone from the back of my napkin two years ago, in my house, to in front of the U.S. Supreme Court and national policy in about a 20-month period. So, what else could you ask for, right?” Xconomy reported.

Broadcasters have appealed a decision in the Second Circuit that Aereo is not violating their copyright in their programming. One of their biggest arguments is that a ruling in favor of Aereo would excuse cable networks from paying for broadcast programming.

For his part, Kanojia said that a ruling in Aereo's favor would protect "the consumer in the midst of all this profiteering,” Xconomy also reported.

FilmOn X’s David: Supreme Court So Much Preferable to ‘Lunatic’ District Courts

Submitted by Amaris Elliott-Engel on Wed, 10/16/2013 - 23:27

Every time I see Internet television streaming service FilmOn X CEO Alki David quoted, he comes across as crazy. But speaking at a New York Law School forum on the future of television over Skype from Greece at 4 a.m. in the morning, he seemed no crazier than any other intelligent eccentric unafraid to speak his mind.

David said he would strongly prefer the U.S. Supreme Court or an intermediate appellate court to settle the copyright-law disputes triggered by his company’s and competitor Aereo’s new businesses.

"I've personally found much more joy in a higher court simply because the district court judges seem to be totally lunatic,” David said. “I don't know how one judge can make technical decisions and be completely technically inept. I don't understand how one judge can make decisions without having a hearing.” David’s firm is subject to a nationwide injunction issued by U.S. District Judge Rosemary M. Collyer of the District of Columbia District except for within the Second Circuit.

The issue of whether Internet streaming of free broadcast TV programming violates the copyright holders’ exclusive rights to public performance “really needs the grouping of brains and the grouping of intelligence to sit down and go through this and ultimately come to a decision. I will be ultimately happy for it to go to as high of a court as possible," David said.

While David argues that broadcasting programming is a public good because it’s delivered over the public broadcast airwaves, David also said that he would happily pay retransmission fees and “we’re not here to take market away from anybody.” There are entrenched interests in broadcasters against changing the status quo, including from legal departments who would like to fight against FilmOn X as much as possible, he added.

FilmOn X’s leader rejected the argument that his company is distributing copyrighted content without paying for it: "The content that is being distributed on our P2P networks is content that is freely available to the public,” David said. “It's not as if we're retransmitting DVR boxes with the NFL network or with Discovery."

In a panel discussion prior to David’s remarks, attorney Jonathan Band, with the law firm policybandwidth and who is in favor of FilmOn X’s and Aereo’s positions, said it’s an important fact both Aereo and FilmOn X have an array of antennas. One massive antenna distributing broadcast TV retransmissions to viewers might violate coprygith law, Band argued, but “on the other hand by having 10,000 antennas you have this one-to-one relation” of one antenna to one user.

Mary Ann Zimmer, of the Law Office of Mary Ann Zimmer and who is on the side of broadcasters, said in her opinion the legislative history of the Copyright Act shows that Congress did its best to protect copyright holders no matter what devices or methods were developed to reproduce their intellectual property.

“That was Congress' intent to broadly cover any kind of method” of transmitting the performance of broadcasting programming, Zimmerman said.

Aereo and FilmOn X are pursuing a “weird little loophole” to try to get around Congress’ intent, Zimmer argued.

The only reason Aereo and FilmOn X are “available business options is because they’re not paying for the content. It’s the greatest model,” said Howard Homonoff, of Homonoff Media Group, LLC, and who favors the broadcasters’ position.

While Zimmerman argued that FilmOn X and Aereo are interfering in the ability of broadcasters to develop markets for Internet distribution, Band said that the firms are filling a market niche for television consumers who want their programming unbundled and to have “the ability to select exactly what they want.”

FilmOn X Faces Contempt of Court For Boston-Area Streaming

The Wrap reports that--despite a national injunction barring FilmOn X from streaming free broadcast TV programming on its Internet service everywhere but in the Second Circuit--the company went ahead and started streaming in the Boston area.

FilmOn X was going to ask for a further carve-out from the injunction issued by a District of Columbia federal judge because a Boston-area federal judge ruled that broadcasters were not entitled to a temporary restraining order of FilmOn X's competitor, Aereo, in the New England area.

But FilmOn X didn't wait until the court ruled. The result? "A district court judge on Tuesday threatened to find FilmOn X in contempt of court for beginning to air network affiliates from Boston despite her injunction barring the company from airing network stations outside New York and Massachusetts," The Wrap reported.

UPDATE: The judge's order also rejected FilmOn X's request to modify her preliminary injunction.

Broadcasters Seek U.S. Supreme Court Review in Aereo Copyright Case

TV broadcasters are challenging in the U.S. Supreme Court Aereo's business model as an infringement on their copyrights in their programming. FierceCable reports: "Broadcasters argue in the petition that Aereo designed its system to exploit what they described as a loophole in copyright law which has allowed Cablevision to launch its network DVR." Aereo specifically set up its service of streaming free broadcast programming through individual antennas within the Second Circuit because of the Cablevision precedent.

FierceCable also reports a ruling for Aereo could have positive implications for "cable operators and satellite TV distributors who pay retransmission-consent fees to broadcasters."

Hearst Loses Copyright Fight Against Aereo in Boston

Just this morning, Hearst, which has a TV station in the Boston area, lost its argument for a temporary injunction in the District of Massachusetts against Aereo, GigaOm reports. Hearst argues that the use of individual antennas by Aereo to rebroadcast its copyrighted television content violates its public performance rights. But the judge said a temporary injunction is unnecessary because '“it seems more likely that the harm will take several years to materialize,'" GigaOm reports.

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