1.07.2016

Copyright Cases To Watch In 2016

Copyright Cases to Watch in 2016

From a cutting-edge fair use fight between Google and Oracle to a hotly anticipated appeal from the artists behind "Blurred Lines," 2016 is looking like it will be another fascinating year in the world of copyright law. Here are the key cases attorneys will be following. 
Oracle v. Google

All eyes will be on the Northern District of California this spring when Oracle Corp. and Google Inc. kick off a second trial in their closely watched battle over Google's unauthorized use of copyrighted Java code in the Android operating system — a case with big implications for how software is protected by intellectual property law.

Oracle sued Google back in 2010 for copying portions of Oracle's Java APIs — preset blocks of software code — and incorporating them into its hugely lucrative Android platform. Google admitted to using bits of code but believed they were merely “methods of operation” that didn't warrant copyright protection.

It was wrong. In 2014, the Federal Circuit ruled that Oracle's code was eligible for copyrights, and the U.S. Supreme Court refused to take up the case in June, sending it back to the district court for more proceedings on whether Google infringed those copyrights.

The new trial, set to kick off perhaps as early as March, will center on Google's backup defense: that even if Oracle's API code is eligible for copyright protection, Google's use of it was nonetheless protected under the fair use doctrine.

The argument will go something like this: Google used only a small portion of the proprietary code, and it did so merely for the transformative purpose of ensuring that its system was compatible with the widely used Java language.

Whether that argument works will be fascinating to watch. The scope of what is allowed under the fair use doctrine, particularly in the case of “transformative” uses, has been expanded dramatically in recent years, and the Federal Circuit panel that ruled last year did hint that Google might have a decent fair use case.

All that said, the idea that “interoperability” excuses the copying of a lucrative copyrighted work would be fairly new territory.

“It's certainly a very unique area in terms of the application of fair use,” said Naomi Jane Gray, a partner with Harvey Siskind LLP. “Several major cases that have come out in the last decade have each gone a little further. It will be interesting to see whether this pushes that boundary a little further.”

The case is being closely watched in Silicon Valley, particularly after the U.S. Supreme Court's ruling in Alice Corp. v. CLS Bank International made it far tougher to get patent protection for software.

“Software developers are really looking hard at their options following Alice,” Gray said. “They're looking more to copyright now as they look for means of ensuring that their valuable properties remain protected.”

The case is Oracle America, Inc. v. Google Inc., case number 3:10-cv-03561, in the U.S. District Court for the Northern District of California.

Capitol v. Vimeo

After oral arguments in November, the Second Circuit is set to rule any day on Capitol Records' long-running copyright case against video sharing site Vimeo — a case that should answer tough questions about how the troublesome pre-1972 sound recording fits into the Digital Millennium Copyright Act's system of Internet safe harbors.

Pre-1972 recordings — which are protected by a patchwork of state laws rather than federal copyrights — are all the rage these days, thanks largely to nationwide lawsuits seeking to force Sirius, Pandora and a slew of others to begin paying royalties to play them.

But they're also quietly at play in Capitol's case, where a federal judge ruled in 2013 that the old tracks are not subject to the DMCA's all-important safe harbors, which shield online content hosts like Vimeo or YouTube from liability for copyright infringement committed by their users.

The Second Circuit is set to be the first federal appeals court to consider the complicated issue, which, like pretty much every question in copyright, has divided Silicon Valley and Hollywood into opposing camps.

Vimeo and other online hosts say the decision would force them to police online infringement themselves or risk massive liability — the very situation the safe harbors were designed to remedy. Capitol and other content owners, on the other hand, say a federal statute cannot possibly extinguish state-level IP rights and dismiss Vimeo's arguments as policy concerns.

At oral arguments in November, a three-judge Second Circuit panel seemed sympathetic to Vimeo's concerns about a broader impact on the smooth functioning of the Internet ecosystem.

“This would impose precisely the burden [on Internet hosts like Vimeo] that Congress intended to lift from them,” said Circuit Judge Gerard E. Lynch, referring to the DMCA's goal of limiting the heavy risk of infringement liability faced by network operators.

“That's totally dead if pre-1972 recordings are not included.”

The case is Capitol Records, LLC et al. v. Vimeo LLC, case number 14-1048, at the U.S. Court of Appeals for the Second Circuit.

'Blurred Lines'

2016 is likely to see the Ninth Circuit weigh in on a jury's March verdict that Pharrell Williams and Robin Thicke ripped off their hit “Blurred Lines” from a Marvin Gaye tune — a finding critics worry might have blurred the lines of copyright infringement.

"Blurred Lines” was the best-selling single in the world in 2013, but accusations from Gaye's family surfaced that summer that the tune was also something else: an infringement of "Got to Give It Up," one of the late singer’s best-known tracks.

In March — following nearly two years of high-profile litigation, a six-day trial and two days of deliberation — the jurors agreed. They found that Thicke and Williams had infringed Gaye's song, and they awarded the heirs $7.4 million in damages.

The verdict drew praise from those that didn't like the artists or their controversial “Blurred Lines” music video, but it mostly drew raised eyebrows in copyright circles.

That's because “Blurred Lines” and "Got to Give It Up" are actually quite dissimilar in terms of melody, harmony and lyrics, which are traditionally the factors courts have looked to when comparing copyrighted songs. The songs are quite similar in terms of rhythm and in terms of their “feel,” but those hadn't really been considered copyrightable.

“People have traditionally thought of infringement in terms of melody, harmony and lyrics,” said Jay Rosenthal, a veteran music industry lawyer from Mitchell Silberberg & Knupp LLP.  “With 'Blurred Lines,' we're jumping into an entirely different zone — into the infringement of rhythm, infringement of beats, and infringement of 'feel.'”

“That's scaring a lot of folks,” Rosenthal said. “If affirmed, it could have a chilling effect, particularly on those who write music where beats and rhythm are much bigger parts of the song.”

Thicke and Williams immediately vowed to appeal the verdict, saying it would allow the Gaye heirs to own an entire genre of music and prevent artists from being “inspired” by those that came before them. On Dec. 7, they formally launched that appeal.

The case is Williams et al. v. Bridgeport Music Inc. et al., case number 15-56880, in the U.S. Court of Appeals for the Ninth Circuit.

Fox v. FilmOn

The Ninth Circuit and the D.C. Circuit will be hearing dueling cases in 2016 on whether streaming services like FilmOn X are eligible for a compulsory license to stream copyrighted television content — potentially setting the stage for a trip to the U.S. Supreme Court on the wonky copyright issue.

The Copyright Act's Section 111 license gives cable companies like Comcast Corp. automatic access to broadcasters' content, and FilmOn has spent the last year trying to use the provision to avoid the same kind of crushing liability that shut down its better known rival,Aereo.

In the past, Web-based television services have generally been considered ineligible for the license, but in July, U.S. District Judge George H. Wu issued a surprising ruling in parallel litigation in California that FilmOn was entitled to use it. Fox, which is suing FilmOn for rebroadcasting its content to Internet users, immediately appealed to the Ninth Circuit.

Then in November, U.S. District Judge Rosemary M. Collyer said just the opposite: That Section 111 was intended only for traditional cable companies, and that Web-based services don't pass muster. FilmOn has said it will appeal the decision to the D.C. Circuit.

The dueling cases have big implications, both for FilmOn and the growing Internet streaming industry, and for the statutory license that's at the center of the dispute.

“If these statutory licenses can be more broadly construed to include Internet transmissions, that dramatically broadens their scope,” said Lucy Holmes Plovnick, a partner at Mitchell Silberberg who specializes in statutory licenses.

“Anyone who has any interest in television copyrights is going to be very interested in how this comes out, because it could have a big impact on how content deals are constructed in the future,” Plovnick said.

The California case is Fox Television Stations, Inc, et al v. Aereokiller, LLC, et al, case number 15-56420, at the U.S Court of Appeals for the Ninth Circuit; The DC case is Fox Television Stations Inc. et al. v. FilmOn X LLC et al., case number 1:13-cv-00758, in the U.S. District Court for the District of Columbia.

Fox News v. TVEyes

Having already ruled that Google was protected by the fair use doctrine when it turned millions of books into a searchable database, the Second Circuit is set to decide in 2016 whether to push that concept even further.

After a notice of appeal in December, the appeals court is going to be looking at the legality of TVEyes — a Web service that records television and turns it into a word-searchable database that’s popular with news services, politicians and others. Fox News sued the company in 2013, claiming the service infringed the copyrights on its content.

Since then, U.S. District Judge Alvin K. Hellerstein has issued rulings for both sides.

In September 2014, he ruled that the core TVEyes function — turning television broadcasts into a searchable database of clips for users to watch — was protected by the fair use doctrine and thus didn’t infringe the network’s copyrights. Like Google Books before it, Hellerstein said TVEyes was a valuable research tool that didn’t harm the network's ability to monetize its content.

But he also ruled this summer that several of the service’s side features — tools that let users download clips to a hard drive and share them through email, for instance — are not allowed under the doctrine and thus infringed Fox’s copyrights.

Both sides agreed in December to take those decisions to the Second Circuit, and the case is going to be closely watched by both copyright attorneys and the television industry.

For the lawyers, the key question will be whether the appeals court will continue its fair use hot streak. In 2013, the court issued a controversial, high-profile ruling that said the doctrine allowed visual artist Richard Prince to use copyrighted images as the basis for one of his art projects. And in November, it said Google’s project to scan millions of copyrighted books without permission was also fair.

For TV networks, the question is whether the court will endorse a service that they say destroys a lucrative market for their content.

TVEyes "systematically records content from over a thousand television channels, and charges subscription fees to its customers in exchange for distributing to them massive amounts of content it has neither created nor licensed,” CBSNBC and CNN wrote in an amicus brief supporting Fox.

The case is Fox News Network LLC v. TVEyes Inc., case number 1:13-cv-05315, in the U.S. District Court for the Southern District of New York.

--by Bill Donahue
--Editing by Jeremy Barker and Kelly Duncan.



Case Information

Case Title



Case Number

Court

California Northern

Nature of Suit

Patent

Judge

Date Filed

August 12, 2010

Case Title



Case Number

Court

District Of Columbia

Nature of Suit

Copyright

Judge

Date Filed

May 23, 2013

Case Title



Case Number

Court

New York Southern

Nature of Suit

Copyright

Judge

Date Filed

July 30, 2013

Case Title



Case Number

Court

Appellate - 2nd Circuit

Nature of Suit

3820 PROPERTY RIGHTS-Copyright

Date Filed

April 9, 2014

Case Title



Case Number

Court

Appellate - 9th Circuit

Nature of Suit

3820 Copyright

Date Filed

September 17, 2015

Case Title



Case Number

Court

Appellate - 9th Circuit

Nature of Suit

3820 Copyright

Date Filed

December 8, 2015

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