3.03.2015

The Jiminian Law PLLC News Clipboard - 3.3.15

The stories I found interesting recently in Media/Entertainment, Business, IP and Nonprofits.

Media/Entertainment

  • House Republicans Are Already Trying To Block The New Net Neutrality Rules
    • House Republicans are trying to block the new net neutrality rules passed by the FCC, and are turning a victory for the open internet into an Obama conspiracy theory.
  • Is Pandora a Lender? Appeals Court Weighs Privacy Case Against Pandora
    • A recent pro-Pandora decision in a privacy lawsuit “guts the protections” that lawmakers intended for consumers, an attorney for Michigan resident Peter Deacon told an appellate court this week.
      “This case involves a privacy statute that was written to prevent the disclosure of consumers' deeply personal choices in the books they read, in the movies they watch, and, as relevant today, in the music they listen to,” lawyer Ryan Andrews told a three-judge panel of the 9th Circuit Court of Appeals at a 30-minute hearing Wednesday in San Francisco. “The Michigan legislature clearly would have considered the disclosures by Pandora to be covered by this statute.”
    • Armstrong dismissed Deacon's lawsuit in 2012 on the grounds that Michigan's privacy law -- which is more than 20 years old -- doesn't apply when companies stream tracks. She said the law only applies to companies that lend, rent or sell material.
      Deacon is appealing that decision.
      “What Pandora's doing can be construed as lending,” his attorney argued to the panel. He added that the crux of the ruling -- based on the judge's opinion that “streaming” isn't “lending” --  is “a very dangerous precedent that basically guts the protections that were intended by this law.”
      Pandora's attorney, Jacob Sommer, countered that Pandora functions more like a DJ at a party, or a traditional radio station, than a “lending” service. He added that Pandora's doesn't enable users to “borrow” music, as much as “listen” to music that someone else is playing for them.
  • Clinton, Dems embrace Arquette's equal pay pitch
    • Now, likely 2016 presidential candidate Hillary Clinton, Labor Secretary Tom Perez and other Democrats are using those comments as a way to raise an issue that's been central to their party's economic message in recent years.
      "I think we all cheered at Patricia Arquette's speech at the Oscars -- because she's right," Clinton told an audience of women working in Silicon Valley's technology industry in California last week on Tuesday.
  • How Similar Is 'Blurred Lines' To A 1977 Marvin Gaye Hit?
    • Following testimony from a Motown executive and a piano medley by Robin Thickeduring the previous week's proceedings, Thicke, Pharrell Williams and T.I. will return to Los Angeles federal court on Tuesday to fight claims they copied their multiplatinum song from Gaye's 1977 hit "Got To Give It Up."
    • The dispute isn't so simple as whether the songs sound similar. In recent motions, Thicke and Williams' attorneys threw the Gayes a copyright curveball with the argument they don't own their father’s commercially released recordings — they only own the compositional elements in the sheet music "lead sheets." (The recordings belong to Motown Records, which is owned by Universal, which in turn owns Interscope — the record company that released Blurred Lines and a defendant in the Gayes' countersuit.)
  • Debate Begins Over New Radio Royalty Bill Introduced in Congress 
    • The emails are flying fast today following the Congressional introduction of the Local Radio Freedom Act (LRFA) on Tuesday (Feb. 24). On one side, the National Association of Broadcasters, which vehemently (and unsurprisingly) opposes making terrestrial radio broadcasts responsible for paying for the public performance rights of sound recordings. LRFA -- introduced by Texas Congressmembers Michael Conaway and Gene Green -- would prevent this. On the other side, the musicFIRST Coalition, an artist-centric organization which opposes LRFA on the basis not only of artist remuneration but also the effect the bill could have on debate around the Judiciary Committee's current review of copyright law.
  • Stevie Wonder Owes Millions, Claims Ex-Lawyer's Widow
    • What makes an effective entertainment lawyer? According to a new lawsuit bySusan Strack, her late husband, Johanan Vigoda, was exactly that because he represented Stevie Wonder for four decades. And in that time, the singer's "deals with music companies went from oppressive to … among the most lucrative contract terms in the music industry."
  • Elizabeth Taylor's Estate Sues Christie's over Sale of Her 'Taj Mahal' Diamond
    • The estate of Elizabeth Taylor is suing Christie's auction house over the 2011 auction of the late actress's jewelry and other precious items. At issue, in particular, is the famed Taj Mahal diamond that Taylor received from husband Richard Burton on her 40th birthday.  
      The 17th-century diamond pendant sold for more than $8 million to an anonymous buyer, but that buyer later asked for the sale to be canceled, alleging that the jewel hadn't actually belonged to a Mughal emperor, reports the Los Angeles Times.  
      Christie's canceled the sale, but that was in violation of its own policies, Taylor's trustees claim. They say Christie's never guaranteed the diamond's age or Mughal origins.  
  • Inglewood, CA approves stadium plans for Rams Owner Kroenke
    • The council approved the $2 billion plan with a 5-0 vote after a meeting with several hours of public comment and many vocal Rams fans wearing jerseys in attendance.
      With only a small handful of dissenters, most of the commenters exuberantly supported the move.
  • Anthony Bosch, Alex Rodriguez’s steroid supplier, sentenced to four years in federal prison
    • Bosch, the man behind the notorious Biogenesis doping ring, walked into the courtroom of U.S. District Court Judge Darrin Gayles and stood to receive the terms of his sentence — 48 months, followed by three years of supervised release.
  • 9th Circ. Won't Revive Netflix Antitrust Suit
    • On February 27, 2015, the firm secured a significant court victory for client Netflix, the world's leading Internet television network. The Ninth Circuit Court of Appeals affirmed a decision by the U.S. District Court for the Northern District of California, which granted summary judgment to Netflix, dismissing a federal court lawsuit brought against the company by a class of subscribers that had accused Netflix of conspiring with Wal-Mart to restrain competition in online DVD-rental services. Wilson Sonsini Goodrich & Rosati represented Netflix in connection with the matter before both the Ninth Circuit and the Northern District of California.
  • FCC votes 3-2 to override state bans of municipal broadband
    • While Thursday’s vote applies only to Tennessee or North Carolina, it will provide legal ammunition for towns in more than twenty other states that confront laws banning or restricting municipal-run broadband services.
      The Democratic Commissioners who voted in favor of pre-emption used their platform at the hearing to call attention to towns across the country that lack basic broadband access because private companies won’t build it.
  • Stan Lee Media Urges High Court To Revive Spider-Man Suit
    • Stan Lee Media Inc. urged the U.S. Supreme Court in a filing made public Friday to revive its suit seeking profits and ownership rights to Spider-Man and other characters created by its ex-President Stan Lee, arguing that the Ninth Circuit’s dismissal deviated from Twombly. 
      In a Feb. 12 petition for writ of certiorari, Stan Lee Media claimed the Ninth Circuit’s October decision wrongly limited the pleading standings established by the high court’s 2007 ruling in Bell Atlantic Corp. v. Twombly. That decision tightened the standard on a motion to dismiss from one of notice pleading to a requirement that plaintiffs’ allegations state a claim to relief that is plausible on its face.

      The Ninth Circuit had called Stan Lee Media’s claim that it owned the valuable characters “simply implausible,” since the plaintiff hadn’t claimed it owned the rights to them or tried to license them between 1998, when the company says Stan Lee assigned the company rights to the characters, and 2007, when it filed suit.

      Stan Lee Media contended to the Supreme Court earlier this month that the Ninth Circuit had ignored the Twombly pleading requirement and, by focusing on facts outside the complaint, had wrongly drawn negative inferences against the company.
  • Bill Cosby Asserts "Self-Defense" Rights in Retort to Rape Accusers
    • Bill Cosby has been on the defensive in the past few months over allegations by many women who accuse the comedian of drugging and sexually assaulting them. On Friday, Cosby's lawyers told a Massachusetts judge to dismiss a defamation claim made by three women on the basis that if he branded them liars in statements to the press, he was within his rights to make "privileged utterances of self-defense."
  • Seth MacFarlane Sued Over 'Ted' Talking Bottle Opener
    • Michael Cram claims that he invented the no-button bottle opener as well as the talking beer mug, and has merchandise partnerships with Nascar and the NFL amongst others to exclusively furnish fans with his banter-inducing product lines. He alleges that MacFarlane – along with Universal, Media Rights Capital and US chain Target – has nicked his idea for a bottle opener packaged up with special edition Ted DVDs.
  • Steven Tyler Lawyer Loses First Amendment Battle Over 'American Idol' Negotiations
    • On Wednesday, a California appeals court revived claims against Steven Tyler's attorney, Dina LaPolt, connected to the way she handled her client's contract negotiation to return as a judge on American Idol. The lawsuit was brought by Kovac Media Group, Tyler's former management company, who wanted to take an aggressive posture in 2011 when the Aerosmith frontman's contract was up for renegotiation. LaPolt felt differently and was accused of bad mouthing, disparaging and undercutting Kovac in the negotiation, and ultimately costing Tyler a $6-8 million deal and prompting him to exit Fox's longrunning singing show. In February 2013, a California judge threw out many of the claims against LaPolt, including those for breach of fiduciary duty, breach of the duty of confidence and intentional interference with prospective economic advantage. Today a California appeals court rejects the lower judge's analysis, leaving Tyler himself quite upset.
  • EASL Week In Review
    • Second Stage Theater (Second Stage), an off Broadway company, has brought an action in New York state court seeking an extension in order to secure financing to complete its purchase of the Helen Hayes Theatre (the Hayes). The deal, originally negotiated in 2007, calls for Second Stage to purchase the theater for $25 million. The closing was set for last Tuesday, but when Second Stage could not come up with the money, the Hayes sought to void the deal. Second Stage contends that the Hayes intended to offer to the theater, which has likely grown in value since 2007, to a higher bidder. The Hayes' owners, meanwhile, claim that they were ready to sell on Tuesday but would now prefer to retain ownership of the theater and have no plans to sell it to anyone else.
    • The official process by which high school athletes make their college choices, which has long been derided as unfair and exploitative, may have reached its tipping point. This year, on National Signing Day (February 4th), a star high school football player in Georgia announced on national television that he would be attending the University of California at Los Angeles (UCLA). What he did next may alter the history of college recruiting forever.
    • Earlier this month, an arbitration panel ordered American bicyclist Lance Armstrong to pay $10 million to SCA Promotions (SCA) for bonuses fraudulently won as a result of his seven Tour de France victories.
    • While the class action suit brought by former players against the National Football League (NFL) has garnered the majority of concussion litigation headlines in the past few years, the National Hockey League (NHL, League) also faces a similar legal challenge.
  • Federal Judge Rules That the NFL Overstepped Its Authority in Suspending Adrian Peterson
    • In a surprising and sharply worded decision, U.S. district judge David Doty hasvacated the arbitration award authored by former NFL executive Harold Henderson in December 2014 that had sustained the NFL’s controversial suspension of Vikings running back Adrian Peterson. To be clear, Doty’s order does not reinstate Peterson. Instead, it remands Peterson’s suspension back into hands of NFL commissioner Roger Goodell, who had appointed Henderson as his designee to hear Peterson’s appeal. The NFL has since appealed the decision, saying “we believe strongly that Judge Doty’s order is incorrect and fundamentally at odds with well-established legal precedent governing the district court’s role in reviewing arbitration decisions. As a result, we have filed a notice of appeal to have the ruling reviewed by the Eighth Circuit Court of Appeals.  In the interim, Adrian Peterson will be returned to the Commissioner Exempt List pending further proceedings by appeals officer Harold Henderson or a determination by the Eighth Circuit Court.”
  • Numerous NCAA Conferences Considering Making Freshmen Ineligible
    • Several prominent conferences are considering rules to make freshmen ineligible in men’s basketball to discourage the so-called one-and-done phenomenon, in which the most talented players, who are prevented by N.B.A. rules from being drafted right out of high school, attend college for only one year. The Big Ten also has sought opinions from its members on whether to initiate a “national discussion” on freshman ineligibility in men’s basketball and football, the conference confirmed this week. “There is no official proposal, but we look forward to continuing the conversation with our campus leadership,” the conference said in a statement.
Business
  • What Piketty Missed: The Banks
    • The explosion of finance, and its weak regulation, has exacerbated inequality. Stronger regulation could lead to higher middle-class wages.
  • US Supreme Court on Sarbanes-Oxley Anti-Shredding Provision does NOT apply to Fish
    • The U.S. Supreme Court ruled that Sarbanes-Oxley’s provision against shredding a “tangible object” in 18 U.S.C. §1519 is better read to cover only objects one can use to record or preserve information, not all objects in the physical world. It is highly improbable that Congress would have buried a general spoliation statute covering objects of any and every kind in a provision targeting fraud in financial record-keeping (Yates v. U.S., February 25, 2015, Ginsburg, R.).
      The Court agreed to review the issue of whether Section 1519 reached the conduct of a commercial fisherman who was convicted under the anti-shredding statute for destroying undersize fish after a federal officer issued him a citation and instructed him to bring the fish back to port. Section 1519 prohibits the destruction of “any record, document, or tangible object with the intent to impede, obstruct, or influence” a federal investigation. The decision to reverse was 5-4.
  • 4 Ways to Fight Corruption in Government Procurement
    • 1. Engage with your competitors beforehand
    • 2. Appeal the decision
    • 3. Speak out
    • 4. Seek alternative legal recourse
  • Morgan Stanley Will Shell Out $2.6B To End DOJ MBS Probe
    • Morgan Stanley MS, -0.83%  upped its legal reserves by about $2.8 billion, and accounted for the costs in the 2014 results of its securities business, according to the filing. The higher reserves in turn cut the firm’s 2014 income from continuing operations by $2.7 billion, or $1.35 a share.
  • SEC Targeting Broad Employee Confidentiality Clauses
    • The Securities and Exchange Commission (SEC) has recently contacted a number of companies seeking every confidentiality agreement, nondisclosure agreement, settlement agreement, and severance agreement the companies entered into with employees since the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) went into effect.  According to a February 25, 2015 Wall Street Journal article, the SEC is also seeking documents related to corporate training on confidentiality, as well as “all documents that refer or relate to whistleblowing” and a list of terminated employees. The SEC wants to use these documents as evidence of retaliation against whistleblowers.  In the SEC’s view, these agreements can represent a form of systemic retaliation if they are overly broad and serve to silence would-be whistleblowers.
  • The Great SIM Heist: How Spies Stole the Keys to the Encryption Castle
    • AMERICAN AND BRITISH spies hacked into the internal computer network of the largest manufacturer of SIM cards in the world, stealing encryption keys used to protect the privacy of cellphone communications across the globe, according to top-secret documents provided to The Intercept by National Security Agency whistleblower Edward Snowden.
    •  New York’s top financial regulator said that the state’s proposal for licensing Bitcoin and other virtual currency businesses will be completed in the coming weeks, and that he hopes to make few changes to it.
    • Addressing SIFMA’s Anti-Money Laundering (“AML”) conference Wednesday, SEC Enforcement Director Andrew Ceresney said that – when it comes to AML – the lack of red flags itself is a red flag. Bank Secrecy Act (“BSA”) AML requirements under the Currency & Foreign Transactions Reporting Act of 1970, as amended, 31 U.S.C. §5311, et seq. (31 C.F.R. Chap. X and related laws / regulations: here) require financial institutions to file “suspicious activity reports” (“SARs”) with the Financial Crimes Enforcement Network (“FinCEN”) within the Department of Treasury.
  • N.Y. May Make Executives Liable for AML Controls, Lawsky Says
    • New York could soon start holding bank executives personally responsible for their institutions' anti-money-laundering controls, the state's top financial regulator said Wednesday.
      The state may begin requiring senior executives to attest to the adequacy of their banks' systems for monitoring customer transactions, just as they have to verify financial statements, said Benjamin Lawsky, superintendent of New York's Department of Financial Services. The rule would be modeled on the Sarbanes-Oxley Act, which makes top executives personally responsible for accounting fraud, Lawsky said.
    • Your car’s computer systems are constantly tracking your driving behavior, your speed, seat belt use, and much more. And your vehicle now has the ability to share that data wirelessly. These advances are bringing not only new conveniences but also new concerns about privacy and security.
  • FTC Merger Review Likely to Incorporate Analysis of Privacy Issues
    • The Federal Trade Commission (FTC or the Commission), along with the U.S. Department of Justice, can challenge mergers it believes will result in a substantial lessening of competition – for example through higher prices, lower quality or reduced rates of innovation.  Although the analysis of whether a transaction may be anticompetitive typically focuses on price, privacy is increasingly regarded as a kind of non-price competition, like quality or innovation.  During a recent symposium on the parameters and enforcement reach of Section 5 of the FTC Act, Deborah Feinstein, the director of the FTC’s Bureau of Competition, noted that privacy concerns are becoming more important in the agency’s merger reviews.  Specifically she stated, “Privacy could be a form of non-price competition important to customers that could be actionable if two kinds of companies competed on privacy commitments on technologies they came up with.”
  • New York Attorney General to Propose New Whistleblower Bounty Program
    • New York’s Attorney General will propose a whistleblower program that pays bounties, a move that would open the door for big awards to tipsters in banking. Attorney General Eric Schneiderman is expected to announce plans on Thursday to propose legislation establishing a new state whistleblower program focused on the financial industry, a spokesman said. The program would pay out awards to tipsters who turn over information leading to successful cases.
  • Morgan Stanley expects suit from NY AG over mortgage bonds
    • New York’s top litigator informed Morgan Stanley MS, -0.72%  of the potential lawsuit on Jan. 13, the Wall Street firm said Monday in a regulatory filing. The action stems from “approximately 30 subprime securitizations sponsored by company,” according to the filing.
  • Bharara Sued Over Insider Trading Raid On Hedge Fund
    • A former hedge fund manager on Thursday sued U.S. law enforcement officials, including Manhattan U.S. Attorney Preet Bharara, claiming the government improperly raided his offices and destroyed his business as part of a widespread insider trading crackdown.
    • President Barack Obama’s November 20, 2014, announcement regarding executive actions he will be taking on immigration reform has put into motion a number of changes to U.S. immigration law in 2015 that could be important. 
      While Congress moves to block the President’s actions, as well as to introduce its own reform legislation, and many states challenge the executive action, other major legislative and regulatory developments are taking place that immigration attorneys will be watching.
    • 1. Revisions to Adjustment of Status
    • 2. Easing of Demand on H-1B Visas
    • 3. PERM Regulations to be Revised
    • 4. Clarification of Specialized Knowledge for L-1B Visa Program
    • 5. Promoting Research, Development, and Entrepreneurs
    • 6. Interagency Cooperation on Worksite Enforcement
Intellectual Property
  • Apple Ordered To Pay $533M In ITunes Patent Lawsuit
    • A Texas jury ordered Apple to pay $533 million for improperly using another company's patented technology in iTunes. The technology is owned by Smartflash, a Texas-based company that licenses seven data storage patents owned by CEO Patrick Racz, who is also the company's only employee. Smartflash claimed that Apple (AAPL, Tech30) violated three of its patents on storing and managing data, including payment information. The patent company said its technology was unlawfully used by several iTunes apps, including Robot Entertainment's "Hero Academy," KingsIsle's "Wizard101" and Game Circus' "Coin Dozer" series of games.

    • This February 26, 2015, marks the two-year anniversary of the U.S. Supreme Court’s decision in Clapper v. Amnesty International USA,[1] which required plaintiffs to allege that a threatened injury is “certainly impending” in order to constitute an injury-in-fact sufficient to convey Article III standing. In this time, federal district courts in at least twelve data breach cases have applied Clapper.[2] While the majority of these courts have concluded that Clapper mandates dismissal for a lack of standing, some courts have found that standing exists. This article provides an overview of these cases and highlights certain considerations that impacted the courts’ analysis in determining whether standing exists.
    • A Philadelphia meat company has a beef with Springdale, Ark.-based Tyson Foods Inc. Parks LLC is suing Tyson Foods and The Hillshire Brands Co. for trademark infringement and false advertising. The company filed the complaint in US District Court in Pennsylvania Eastern District. Parks claims Tyson and Hillshire appropriated Parks' brand by using "Park's Finest" on Ball Park's brand of premium frankfurters.
  • Fortune Turns on Lucky Brand in Trademark Suit
    • Lucky Brand, famous for its eponymous jeans, must face claims that it infringed on Marcel Fashions' trademark "Get Lucky," the 2nd Circuit ruled Wednesdsay. Marcel Fashions Group has sold jeans under its mark "Get Lucky" since 1986. Lucky Brand Dungarees began selling jeans and other clothes under its "Lucky" marks in 1990. It owns the marks "Lucky Brand" and "Lucky Brand Dungarees. In 2005, Lucky sued Marcel for alleged infringement on its trademarks, but Marcel made counterclaims seeking to enjoin Lucky from using any mark including the word "Lucky." A jury found for Marcel, and the parties negotiated a final order that prohibited Lucky from using the "Get Lucky" mark. In its verdict, the jury answered "Yes" to a question asking whether Lucky "infringed Marcel Fashion's 'Get Lucky' mark by using 'Get Lucky,' the 'Lucky Brand' marks and any other marks including the work 'Lucky.'" This language was not included in the parties' final order, however, because Lucky refused to agree to its inclusion.  Marcel sued Lucky Brand seven years later for continuing to use its marks in violation of the parties' prior settlement.
    • Lynch last week filed for the trademark to the phrase "I'm just here so I won't get fined" with the U.S. Patent and Trademark Office. Lynch famously uttered the phrase as the answer to more than 20 questions on Super Bowl XLIX media day before walking off the podium.
  • Senate Judiciary Unanimously Approves Michelle Lee
    • On Thursday, February 26, 2015, the Senate Judiciary Committee unanimously approved the nomination of Michelle Lee to serve as the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office (USPTO).
  • Copyright Office Needs Modernizing, House Panel Hears
    • The U.S. House Judiciary Committee has mulled its way through 16 well-attended and sometimes contentious hearings on comprehensive copyright reform since 2013. Thursday’s hearing—“the U.S. Copyright Office: Its Function and Resources—sounds like one that keen copyright followers might think is mundane enough to skip, but they would be wrong. The Office’s functions tremendously affect how libraries, businesses, authors, and other creators also operate, because the Office holds the official record of what works are protected and who holds the copyright. Plus there was a little excitement.
  • Apple, Flowers Foods, Aereo, Solazyme: Intellectual Property
    • The licensing battle between Apple Inc. and Ericsson AB is escalating.
    • Flowers Foods Inc., the Georgia-based maker of Bunny Bread and TastyKake snack foods, said in a statement that it has acquired the Roman Meal trademarks.
    • The auction for the assets of non-operating Aereo Inc. was a bust.
    • A federal court in Los Angeles rejected a request by providers of in-flight entertainment to dismiss a copyright lawsuit filed against them by music publishers.
    • Solazyme Inc. accused a French company of trade-secret misappropriation in a case involving attempts to create algae-based nutritional products.
Nonprofits

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