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U.S. Supreme Court

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.

Politico: Supreme Court May Get Reporter's Privilege Plea

New York Times reporter James Risen has asked the Fourth Circuit to put on hold its ruling denying that a reporters privilege applies in a criminal case in which he could be forced to testify, Politico reports. Meanwhile, Risen will seek for the U.S. Supreme Court to take up the issue.

The underlying criminal case involves former CIA officer Jeffrey Sterling, who "has been indicted for leaking Risen information about a CIA operation to provide Iran with flawed nuclear designs as part of an effort to set back that country's alleged nuclear weapons program," according to Politico.

Risen has vowed to go to jail before revealing who his source was.

PA Judge Upholds Religious Exemptions to Obamacare

Even though the Third Circuit has held that "secular, for-profit companies aren't afforded religious protection and the constitutional rights of their owners don't pass through to the corporate entity," a district-court federal judge sided with employers that are challenging Obamacare's contraceptive-coverage mandate on the grounds that it violates their freedom of religion, The Legal Intelligencer, Pennsylvania's legal newspaper, reported. The Legal also reported that U.S. District Chief Judge Joy Flowers Conti of the Western District of Pennsylvania denied a request from the Obama administration for an indicative ruling on the application of the Third Circuit case when Conti had granted an injunction for a plaintiff from the contraception mandate.

The issue is being primed for the U.S. Supreme Court. A circuit split is present on the issue between the Third Circuit and the Tenth Circuit.

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.”

Onondaga Nation Land Claim Case Ends With Supreme Court Rejection

The Onondaga Nation's land-claim lawsuit ended after an appeal to the U.S. Supreme Court was rejected. The circuit court had ruled the tribe had waited took long to seek redress for the loss of their territory in New York. The Syracuse Post-Standard reports the tribe may turn to international forums instead: "The nation said it will pursue the claim in international venues -- the United Nations or the Organization of American States Commission on Human Rights."

University Affirmative Action Plaintiffs Will Diverge in Supreme Court Arguments Today

Challenges to Michigan's state constitutional ban on giving any preference to race in the field of education will be heard by the U.S. Supreme Court today. In an unusual circumstance, two sets of plaintiffs will make separate arguments in the court. Reuters reports: "One group opposed to the ban, from the University of Michigan, employs measured rhetoric, relies on more recent cases joined by conservative justices and tries to assure the court it can rule narrowly when striking down the Michigan ban. The other group, a long-standing Detroit-based coalition advocating for minority rights, is pushing a more expansive legal rationale and, in more impassioned rhetoric, invokes the orations of two late champions of racial justice in the 1960s, Martin Luther King and President Lyndon Johnson."

Stopping Link Rot in Law and Science

Here's a more in-depth look at the site that "is creating etched-in-stone digital references for scholars and lawyers," GigaOm posted.

The site would solve the issue of broken links to the sources in scholarship by taking readers "to the site where they are presented with a page that has links both to the original web source (along with some information, including the date of the link’s creation) and to the archived version stored by," GigaOm also reports.

As GigaOm also noted, "link rot is a growing issue for both courts and academic journals, but one that is downplayed on the grounds that books and paper are the 'real' authorities while internet sources are ephemeral or, at best, unofficial. As the era of print recedes, however, this anti-digital bias looks more and more untenable."

My prior post on the findings that 50 percent of links in U.S. Supreme Court cases and 70 percent of links in some Harvard law journals are broken:

Adam Liptak: Roberts Court Less Activist Than You Think

The New York Times' Adam Liptak has this Sunday Review piece exploring how activist U.S. Supreme Court Chief Justice John Roberts Jr.'s court has been. There's a surprise in the findings. " If judicial activism is defined as the tendency to strike down laws, the court led by Chief Justice John G. Roberts Jr. is less activist than any court in the last 60 years," Liptak writes.

Onondaga Nation Land-Claim Case Awaits Supreme Court Review

Lawyers for the Onondaga Nation are not very hopeful that their land claim will get accepted for review, much less get a positive ruling, from the U.S. Supreme Court after the justices ruled that the equitable doctrine of laches barred the land claim of the Oneida Nation, another Haudenosaunee/Iroquois tribe based in New York. However: the "Onondaga’s land rights lawsuit is framed differently from the Oneida and Cayuga cases. It brings environmental issues to the forefront for the first time, naming as defendants various corporations because of the destruction they caused to the land and water. The Onondaga claim crucially does not seek possession of the lands, taxing authority, eviction of the people who live on the land or any action other than acknowledgment that the lands were unlawfully taken from the Nation," Indian Country Today reported.

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."


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