Tag Archives: supreme court

July 16 / All Articles, Copyright

The Legal Lag Behind Emerging Technology: Aereo – Innovation or Exploit?

pdf version

The now defunct technology start-up Aereo was poised to revolutionize the live broadcast television model. However, after a three-year legal battle spanning several states that eventually led to the Supreme Court, Aereo was found in violation of the Copyright Act of 1976. Broadcasters applauded the decision, while technologists worried the Court had not only failed to understand the technology behind Aereo, but had also created a dangerous legal precedent for all future cloud computing technologies.

Aereo allowed users to stream and record broadcast television to any laptop or mobile device. Shortly after Aereo was announced, broadcasters filed for an injunction claiming Aereo was in fact a cable companSuy, and as such needed to pay retransmission fees.  The heart of broadcasters’ argument focused on the definition of “performance” and “to the public” under the Transmit Clause of the Copyright Act, 17 U.S. Code section 101.  Aereo contested, stating that its service was acceptable both legally and technically because it simply provided users an alternative means to access free, over-the-air broadcasts. Much of Aereo’s legal argument rested on Cartoon Network LP, LLLP v. CSC Holdings, Inc. (hereinafter “Cablevision”).

The Supreme Court ultimately held for broadcasters in a 6-3 decision favoring a legislative intent interpretation of the Copyright Act.  The Court agreed with the broadcasters’ argument that Aereo’s technology, though functionally legal, exploited a loophole created by the Cablevision decision. Therefore, Aereo was retransmitting to the public, and as such was in violation of the Copyright Act.

The decision has had a polarizing effect. Technologists fear that this decision may have unintended consequences in the ever-growing cloud computing space, whereas proponents argue that this decision is narrowly limited to cable companies. The decision has already played a role in challenging the launch of new services, most notably satellite television provider Dish’s release of Dish Anywhere – a service that allows users to stream cable television to any device. However, currently these ramifications are isolated to the broadcast industry and have yet to result in far reaching or significant consequences for the developing cloud computing technologies.

By Ruchir Patel




November 5 / All Articles, Copyright

“For Limited Times”: The Supreme Court Finds The Copyright Term Extension Act Constitutional In Eldred v. Ashcroft, But When Does It End?

“The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries …” [1]




Before the enactment of the Copyright Term Extension Act, [2] (hereinafter “CTEA”) the United States had a copyright term of author’s life plus fifty years, [3] or when there is no identifiable author, a copyright term of the earlier of seventy-five years from publication or one-hundred years from creation, [4] under the 1976 Copyright Act. This copyright term of the author’s life plus fifty years put the U.S. in conformance with global standards under the Berne Convention [5] and the World Trade Organization (hereinafter “WTO”)’s Agreement on Trade Related Aspects of Intellectual Property Rights [6] (hereinafter “TRIPS”).


In 1993, however, a European Union directive extended the copyright term to the author’s life plus seventy years. [7] The United States followed suit in 1998 with the Sonny Bono Copyright Term Extension Act, which, like the E.U. directive, extended the copyright term for an individual’s works by twenty years, resulting in a term of the author’s life plus seventy years. [8] It also extended the term for anonymous, pseudonymous, or works made for hire by twenty years, resulting in a term of ninety-five years from publication or 120 years from creation, whichever comes first. [9] The CTEA also applied retroactively, extending the term of existing copyrights. [10]


This retroactive extension of the terms of existing copyrights was challenged in Eldred v. Ashcroft, but the United States Supreme Court on January 15, 2003 held (in a seven to two decision) that this did not transgress constitutional limitations. [11] This article will examine the constitutionality of the CTEA, and will consider the question of when a limited time for a copyright term does end, under the U.S. Constitution. [12]…


Sue Ann Mota*

March 19 / All Articles, Computing

P2P File-Sharing: What The Supreme Court Has An Opportunity To Consider

When the United States Supreme Court hears Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd. (04-480) on March 29th, it has an opportunity to consider for the first time, the rights, responsibilities and liabilities of p2p network creators and their users, the content industry, and ISPs. Over 25 of the world’s largest entertainment conglomerates joined together in petitioning the Supreme Court for a grant of certiorari.1 Petitioners characterize this case as “one of the most important copyright cases ever to reach this Court. Resolution of the question presented here will largely determine the value, indeed the very significance, of copyright in the digital era.”2 Respondents agree that the stakes are considerable, observing that this “case raises a question of critical importance at the border between copyright and innovation: when should distributors of p2p software—a multi-purpose tool—be held liable for infringements that may be committed by end-users of the tool?”3


This case will review the Ninth Circuit ruling that p2p software providers do not have secondary liability for those copyright infringements possibly committed by actual direct users of the p2p software.4 The Ninth Circuit followed the paradigm set forth in Sony Corp. of America v. Universal City Studios, Inc.,5 which drew on the staple article of commerce doctrine from patent law.6 Under this rule, it is “sufficient to defeat a claim of contributory copyright infringement if the defendants showed that the product was capable of substantial or commercially significant noninfringing uses [and thus was a fair use].”7 The Ninth Circuit first followed this rule in the Napster cases.8 The court reasserted the Sony/(Betamax) rule in Grokster, concluding that since the p2p software was capable of substantial or commercially significant noninfringing uses, the copyright owners must show the software distributors had reasonable knowledge of specific infringing files.9 Relying on this, it found that since Respondents merely offer for download distributed file-sharing software (p2p software) that is capable of a myriad of uses, including downloading infringing and noninfringing content, no liability could attach as they (1) lacked knowledge of the infringing activity; and (2) did not materially contribute to the infringing conduct.10 Respondents offered nothing more than executable distributed file-sharing software; they provided neither support, nor storage, nor directory services that would have created a basis for secondary liability.11


Margo E. K. Reder*