Posts in Circuit Courts of Appeal

On November 1st, the U.S. Court of Appeals for the Eighth Circuit (8th Cir.) issued a decision in a case brought by motion picture entertainment company Warner Bros. and appealed by a group of defendants who licensed images culled from publicity material for some of Warner’s most famous entertainment properties. A panel from the 8th Cir. found in favor of Warner Bros. and affirmed an earlier verdict, which has helped to define whether publicity material for films and animated shows are available in the public domain. This decision is the second time that 8th Cir. has issued a judgment in this case.

The $41.4 million settlement ends a legal clash that had previously led to the largest damages award for corrective advertising ever. The jury verdict was entered in the U.S. District Court for the Middle District of Florida (M.D. Fla.) and the settlement ends an appeal filed by U-Haul in the U.S. Court of Appeals for the Eleventh Circuit (11th Cir.).

In early October, the U.S. Court of Appeals for the Second Circuit (2d Cir.) handed down a decision, which almost answered important questions about how cloud-based access to content can affect copyright holders. At issue in the case, Cheryl Smith v. Barnesandnoble.com, LLC, was Barnes & Noble’s activities in providing samples of a text through the cloud to consumers after a licensing agreement on that piece of text was terminated.

The cover of the October 2010 edition of O prominently features the words “Own Your Power” superimposed over a picture of Oprah. The use of this phrase sparked a trademark infringement case which Oprah has recently defeated on appeal. On September 16th, a panel of judges from the U.S. Court of Appeals for the Second Circuit (2d Cir.) struck down an appeal brought by a party holding trademark rights for the limited use of the phrase “Own Your Power.”

Just how much knowledge about piracy on its system does an online service provider need before it loses its safe harbor protection, which severely limits its potential liability for copyright infringement, under the Digital Millennium Copyright Act (DMCA)? In Capitol Records v. Vimeo, the Second Circuit sets the bar very high, further blurring one of most important lines in copyright law—the line between actual and red flag knowledge—and protecting a not-so-innocent service provider in the process. Worse still, the Second Circuit leaves copyright owners with little chance of a remedy in the face of rampant piracy, even against a service provider that welcomes the infringement.

The reason why net neutrality came up in the American political discourse in late 2014 has much to do with paid prioritization. Paid prioritization is an agreement in which a broadband service provider negotiates an arrangement with a content provider that results in the content provider being given priority access at congested Internet nodes. The Obama administration came out strongly on the topic of paid prioritization, calling for it to be explicitly banned by the FCC. The White House also called for rules preventing ISPs from blocking content or intentionally throttling any kind of data transmission. By the end of September 2014, the FCC had received 3.7 million public comments on the subject of net neutrality.