Tag Archives: supreme court

Copyright Law – Supreme Court to Address Recoverable Costs

The Supreme Court of the United States has granted a petition for certiorari in the case styled as Rimini Street, Inc. v. Oracle USA Inc. in order to address split between the circuits as to the types of “costs” that may be recovered under the Copyright Act. 

As framed by the briefs in the case, Question Presented by the petitioner is: Whether the Copyright Act’s allowance of “full costs,” 17 U.S.C. § 505, to a prevailing party, is limited to taxable costs under 28 U.S.C. §§ 1920 and 1821, as the U.S. Courts of Appeals for the 8th and 11th Circuits, have held, or whether the Act also authorizes non-taxable costs, as the U.S. Court of Appeals for the 9th Circuit held.

Currently, there are three (out of twelve) federal circuit courts of appeal which allow certain costs to be recovered.  Those circuits are the First, the Sixth, and the Ninth.  The federal circuit courts of appeal that do not allow recovery of these costs are the eighth and the eleventh (which controls all cases filed in Florida). 

The result of this decision may change the law in the Eleventh Circuit, as to what costs are recoverable under the Copyright Act.




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SCOTUS ALERT: Trademarks and Bankruptcy

On Friday, the United States Supreme Court (SCOTUS) granted a petition for certiorari in the case called Mission Product v. Tempnology, in order to hear a case involving trademark law and bankruptcy law.  The issue that is to be heard relates to what happens to a trademark license when the owner of the brand files for bankruptcy.

Currently, the different Circuit Courts of Appeal are not all in agreement as to what should happen.  In certain particular Circuit Courts of Appeal, the licensor that files bankruptcy can use a particular bankruptcy code provision, identified as Section 363 under the Bankruptcy Code, in order to cancel the right of a licensee to use the bankrupt company’s trademark.  However, in certain other Circuit Court’s of Appeal, the courts have been allowing the trademark licensee the right to continue using the bankrupt’s trademark.

The issue is as much a question of trademark law as it is bankruptcy law.  Under the Bankruptcy Code, the law allows a bankrupt the right to accept or reject a contract, wherein both sides still have obligations.  This is known as an executory contract.  However, Section 363 contains an exemption for certain forms of intellectual property, but it currently does not include trademarks.

The two most well-recognized opinions where the courts’ position diverge is the Seventh Circuit and the First Circuit, which is where the Mission Product case is pending.  In essence, the Mission Product appellate court has held that courts should not impose upon a bankrupt the obligation to continue to monitor how its trademark was being used, which goes to the essence and policy of bankruptcy law.

Never a dull moment in intellectual property and bankruptcy law.




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Supreme Court to Hear Online TV Rebroadcast Case

copyrightIn what is certain to be a landmark cyber law decision, the U.S. Supreme Court agreed to hear argument in a copyright infringement case pitting traditional TV Broadcasters against on-line streaming video. (American Broadcasting Companies, Inc., et al., v. Aereo, Inc., Docket 13-461) The Court will decide whether a company “publicly performs” a copyrighted television program when it retransmits a broadcast of that program to thousands of paid subscribers over the Internet.

As noted in the case, founded in 2010, Aereo Inc. provides over-the-air television to paid subscribers through Internet connected smart phones, tablets, and laptops. Its technology is currently supported on iPad, iPhone, AppleTV, and other similar platforms.

Aereo rents to subscribers a tiny TV antenna located in a data center near the subscribers. The antenna is connected to a remote DVR in the same data center. The subscriber controls both the antenna and DVR from an Internet-connected device. When the subscriber tunes to a channel, the device instructs the antenna to tune to that channel and start recording the programming to the DVR. This lets the subscriber pause and rewind the program while watching. A program may be saved for future viewing and a subscriber may schedule future recording of programs.

Barry Diller, an Aereo Board member, has called Aereo’s “the first potentially transformative technology that has the chance to give people access to broadcast television delivered over the Internet to any device, large or small, they desire.”

In March 2012, a consortium of Broadcasters (including ABC, CBS, Fox Television, Univision, and others) sued Aereo. In their view, an Aereo retransmission is a “public performance” of an otherwise copyrighted work protected under Sections 101 and 106 of the Copyright Act of 1976.  The Second Circuit Court of Appeals rejected that argument, and the providers have now appealed to the U.S. Supreme Court.

The Broadcasters say, in their Petition for Writ of Certiorari, that the case “presents questions of copyright law that profoundly affect, and potentially endanger, over-the-air broadcast television…(And that,) the broadcast television industry has invested billions of dollars producing and assembling high quality and creative entertainment and news programming in reliance on (copyright law), which prevents retransmission services from free-riding on broadcasters’ investments and provides broadcasters with incentive for further investment and innovation.”

In its January 10, 2014 press release, Aereo’s Founder and CEO Chaitanya Kanojia, says that “(t)his case is critically important not only to Aereo, but to the entire cloud computing and cloud storage industry.” He also says that “(t)he challenges outlined in the broadcasters’ filing make clear that they are using Aereo as a proxy to attack Cablevision itself and thus, undermine a critical foundation of the cloud computing and storage industry.

In examining the Aereo model in connection with the Broadcaster’s initial motion for a preliminary injunction, the District Court examined the Copyright Statute in light of Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008). In that earlier Second Circuit case, broadcasters challenged Cablevision’s “Remote Storage” Digital Video Recorder system (“RS-DVR”), using a technology akin to both traditional, set-top digital video recorders, like TiVo (“DVRs”), and the video-on-demand (“VOD”) services provided by many cable companies. The Second Circuit reversed and vacated the judgment of the district court because each RS-DVR playback transmission was made to a single subscriber using a single unique copy produced by that subscriber, which did not constitute performances “to the public.”

In its Amicus Curiae Brief supporting the Broadcasters Petition, the Washington Legal Foundation argues that the Second Circuit’s reasoning is faulty. The holding it says “threatens to eviscerate the public-performance right by holding that the relevant inquiry “is the potential audience of a particular transmission, not the potential audience for the underlying work or the particular performance of that work being transmitted…In other words, because every Aereo subscriber receives an individual transmission from a unique subscriber-associated digital copy of the same” performance, no violation occurs.”

Oral argument will be heard later this Spring.  What should prove as one of the more interesting decisions to be rendered this Term will follow shortly thereafter. Assouline & Berlowe is following this case closely.

Stay tuned!

For more information, contact:

Partner Carl H. Perdue, Esq.


1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main:  (561) 361-6566

Fax: (561) 361-6466

Email: CHP@assoulineberlowe.com


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