Lawsuit: The Future of #FoxNews

Newsflash from your Hollywood Attorney:

The lawsuit alleges that TVEyes is running a service making "verbatim reproduction" of Fox News' programming and participating in a "massive ongoing pattern and practice of infringement."

Now, the defendant is seeking to have a New York judge throw out several of Fox News' claims. The company has hired Andrew Schapiro at Quinn Emanuel who was also Google's attorney in the billion dollar fight with Viacom. Earlier this month, he filed a motion to dismiss that describes TVEyes as recording and indexing over 1,600 television and radio stations around the world, and whose customers include the United States Department of Defense, the United Nations, several members of Congress, The New York Times, Time Warner Cable, professional sports teams and leagues and other political organizations.

Some of its customers presumably use the service as a form of egosurfing. Others for PR and marketing purposes. And perhaps some news organizations are using it to quickly check out how some of Fox News' conservative commentators are treating the day's most topical news. Whatever those motivations, Fox News sees TVEyes as a form of unfair competition: It's alleged that users of the service would otherwise be watching Fox News telecasts, going to Fox News websites, or bolstering ITN Source, Fox News' licensed clip service.

Fox News' lawsuit against TVEyes is primed to address an area of tort law -- "hot news misappropriation" -- that has been around for nearly a century, but largely fell out of favor until very recently when some publishers wondered whether the threat of online content aggregation required some legal response. Now, a new ruling on the topic could be imminent.

Some background...
The hot news doctrine dates back to a 1918 ruling from the U.S. Supreme Court involving The Associated Press going up against a competitor wire service. Justice Mahlon Pitney wrote that news was "quasi property," and that there should be some consideration of a news organization's expenditure of labor, skill, and money in gathering tips and producing content.

Throughout the years, the "hot news" doctrine has suffered some legal blows, most recently in a 2011 decision by the 2nd Circuit Court of Appeals. In that case, a website called Theflyonthewall.com successfully fought an injunction that was issued after it kept posting leaked stock market buy and sell recommendations from Barclays Capital. A 2nd Circuit judge wrote, "We conclude that in this case, a Firm's ability to make news -- by issuing a Recommendation that is likely to affect the market price of a security -- does not give rise to a right for it to control who breaks that news and how."

Some in the tech community were relieved at the ruling, but the case left possible openings for future courts to draw the line on "scoop" free-riding. Notably, this past March, the Associated Press with support from some news organizations (including TVEyes customer New York Times) prevailed in a ruling against Norway-based news monitoring service Meltwater, whose software enables users to track in real-time when their company is mentioned in breaking news, scraping headlines and article snippets in its reports. The judge in the Meltwater case rejected the defendant's fair use defense, writing, "the public interest in the existence of such commercial enterprise does not... justify allowing Meltwater to free ride on the costly news gathering and coverage work performed by organizations."

That's where Fox News steps in.
In its lawsuit alleging copyright and hot news misappropriation claims (read here) against TVEyes, the cable network points to the expense of producing its news programming and its time sensitive nature, and says, "If TVEyes is allowed to continue its willful free-riding on Fox News's programming, it will substantially reduce Fox News's incentive and ability to produce new content, jeopardizing both the quality and the quantity of premium news reporting available to consumers."

Now comes the motion to dismiss ( http://www.scribd.com/doc/171542472/tveyes ), which says the cable network's "skeletal allegations" don't sufficiently support its claims because among other things, the plaintiff doesn't identify "which particular time-sensitive facts purportedly were... taken."

More interestingly, TVEyes addresses a news future where digital technologies and bots play a role in the delivery of factual information.

"TVEyes captures the content of thousands of television and radio broadcasts and, using its own proprietary technology, indexes the content and delivers small, relevant excerpts to its customers in response to user-selected keywords," it says. "All of this indexing, organizing, and delivering occurs at solely at TVEyes’ expense, and Fox does not allege otherwise."

The company attempts to draw a distinction between what it does and what Fox News does.

"More importantly, in delivering its keyword results to customers, TVEyes merely reports the fact that a particular keyword was mentioned in a particular Fox broadcast," it says. "This, by definition, is not the same underlying news reported by Fox; it is a new fact, and therefore cannot constitute free-riding."

Source.... http://www.hollywoodreporter.com/thr-esq/how-a-fox-news-lawsuit-638315

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Copyright Lawsuit YouTube and Viacom

A federal judge in New York on Thursday ruled that YouTube had not violated Viacom's copyright even though users of the popular online site were allowed to post unauthorized video clips from some of Viacom's most popular shows, including Comedy Central's "The Daily Show with Jon Stewart" and Nickelodeon's "SpongeBob SquarePants."

Viacom filed the copyright infringement suit in 2007 and demanded that YouTube pay $1 billion in damages. The dispute erupted as established media titans, including Viacom, were struggling to cope with the disruption of digital media and trying to figure out how to rein in the unauthorized distribution of their content.

The case has been closely watched because media companies had hoped the courts would help enforce their copyright protections because the Internet made it so easy for people to pirate clips from their hit TV shows.

However, U.S. District Judge Louis L. Stanton wrote in a 24-page opinion that YouTube was shielded from copyright infringement claims by a safe-harbor provision in the Digital Millennium Copyright Act. Stanton dismissed Viacom's lawsuit, and ordered Viacom to pay some of YouTube's costs.

“The court correctly rejected Viacom’s lawsuit against YouTube, reaffirming that Congress got it right when it comes to copyright on the Internet," Google's general counsel Kent Walker said in a statement. "This is a win not just for YouTube, but for people everywhere who depend on the Internet to exchange ideas and information.”

YouTube founder Chad Hurley taunted Viacom Chief Executive Philippe Dauman, a longtime corporate lawyer, in a Twitter message, asking: "Hey Philippe, wanna grab a beer to celebrate?! YouTube Again Beats Viacom's Massive Copyright Infringement Lawsuit."

This is the second time that arguments of Viacom, which is controlled by media mogul Sumner Redstone, have been rejected.

In 2010, Stanton ruled against Viacom in favor of YouTube in the case, and Viacom appealed. A year ago, an appeals court panel revived the case. That group of judges said the safe-harbor provision protected Internet services companies from liability if they lacked specific knowledge that a piece of infringing material existed -- or if they acted quickly to remove the material once notified.

The case was sent back to Stanton. Viacom argued that it was impossible to prove that YouTube had specific knowledge that certain clips were protected.

But Stanton determined that the sheer volume of content uploaded onto YouTube made it impractical for the video site to know when an infringing clip appeared. The burden, the judge said, fell to Viacom to alert YouTube when unauthorized uses of its copyrighted material popped up on the site.

On Thursday, Viacom vowed to appeal once again.

Read More... http://www.latimes.com/entertainment/envelope/cotown/la-et-ct-youtube-prevails-copyright-suit-viacom-20130418,0,5832848.story

YouTube, Viacom may or may not go to Trial with over a Billion Dollar Lawsuit

The Second Circuit overturned the lower court's decision to throw out Viacom's billion dollar claims that YouTube hosted copyright infringing material. In doing so, the appeals court agreed with much of what YouTube had to say about the high threshold of knowledge of infringements before ISPs are required to expeditiously remove material, but also determined that the federal judge hadn't properly considered whether YouTube may have had actual knowledge of specific infringing clips or whether YouTube might have essentially willfully blinded itself from having that knowledge.

It was a mixed decision for both the parties, and legal observers have debated the meaning of the ruling.

Now the case is back at the lower court before U.S. District Court Louis Stanton for further consideration, but before the judge issues the next big ruling that decides whether the case will be dismissed a second time or proceed to trial, the judge will have to figure out an even more fundamental question: Which side bears the burden of showing requisite knowledge of infringements at the summary judgment stage? Both sides are now accusing the other of shifting that burden.

Last November, Google's YouTube made a new attempt to win the case on summary judgment. That bears at least a little bit of emphasis: YouTube went first.

In a motion that only became unsealed on Friday, the defendant said that Viacom couldn't make a showing that it had actual or red-flag knowledge -- that "there is no evidence from which a jury could find that YouTube actually knew, or was aware of facts and circumstances from which it was apparent, that any of Viacom’s clips-in-suit were infringing, let alone that YouTube failed to expeditiously remove any such clips."

Viacom responded with a somewhat startling admission. "It has now become clear that neither side possesses the kind of evidence that would allow a clip-by-clip assessment of actual knowledge," said the plaintiff.

But Viacom continued:  

                  "It is not Viacom’s burden to prove specific knowledge or awareness. That factual issue is relevant only to the affirmative defense that YouTube is asserting; knowledge of specific infringements is not an element of Viacom’s copyright infringement claims against YouTube. At trial, it will be enough for Viacom to prove that the clips-in-suit were on the website, along with some other elements of infringement liability. It follows that Defendants cannot win summary judgment by pointing to the absence of record evidence that would allow a jury to decide which clips-in-suit were specifically known to senior YouTube executives."
So it's YouTube's responsibility to go first with the evidence? Not so fast...

According to YouTube's reply:

                  "Viacom does not even try to make the showing of clip-specific knowledge required by the Second Circuit’s ruling. It instead reverses course and claims that it is YouTube’s burden to affirmatively establish its lack of knowledge as to each specific clip-in-suit. Viacom’s novel burden-shifting argument is wrong. It is contrary to the Second Circuit’s decision, all the case law, and the structure of the DMCA itself. Viacom also ignores the record. YouTube has identified more than sufficient evidence of its lack of knowledge of infringement — including the very fact that the voluminous record in this case contains no evidence of such knowledge. Viacom’s inability to offer any evidence from which a jury could find that YouTube had actual or red-flag knowledge of even a single clip-in-suit requires that summary judgment be entered in YouTube’s favor."
Both sides are now proceeding to spar on what might be said to be a bit of a procedural conundrum.

Remember, this is a pre-trial motion. Inferences are supposed to be drawn to the party opposing a summary judgment motion -- in this instance, Viacom.

Read More... http://www.hollywoodreporter.com/thr-esq/viacom-youtube-copyright-lawsuit-judge-431981

lawsuit over a "SpongeBob SquarePants Ukulele."

Viacom has gotten a judge to reject the initial version of a lawsuit over a "SpongeBob SquarePants Ukulele."

The claims came from Gibson Guitar Corp., which asserted that the owner of the Nickelodeon TV network was promoting various products that infringed its trademark rights to the words and design of the "Flying V," its more than five-decade-old electric guitar known for its distinctive look.

The judge decided that Gibson wasn't specific enough in making allegations against Viacom versus its U.K.-based licensee John Hornby Skewes & Co.

The judge is allowing Gibson to amend its complaint so this lawsuit might not be completely finished.

Here's the ruling... http://www.scribd.com/doc/129746186/Spongebob

Cablevision Suit Claims $1 Billion-Plus Threat From Viacom

The cable distributor releases a complaint alleging the threat of a "10-figure penalty" and says Viacom's alleged coercive tactics left no choice but to "surrender," then sue.

The lawsuit was filed under seal in late February and has now been made public, with certain redactions. It can be viewed below.

In making the case that Viacom has engaged in a “per se” illegal tying arrangement by bundling "must-have networks" such as Nickelodeon, Comedy Central and MTV with lesser-viewed ones including Palladia, MTV Hits and VH1 Classic, Cablevision must clear a host of legal hurdles.

Two questions in particular might shape the outcome: Why is Cablevision bringing the lawsuit just two months after agreeing to a carriage contract with Viacom? And how does Viacom's behavior threaten competition?

Cablevision presents Viacom's offer as a "10-figure penalty" if the bigger networks were licensed but not the smaller ones.

"Viacom's coercive tactics left Cablevision with only one viable economic choice: to accept a deal under which Cablevision would continue to carry both the core networks (which Cablevision wants to distribute) and the suite networks (which Cablevision wishes to replace with alternative networks). Cablevision accordingly surrendered..."

At a conference this week in Florida, Viacom CEO Philippe Dauman responded that Cablevision got a discount for taking its lesser networks. He said, "I guess their theory is: 'We got the discount. We got three suits for the price of two. Now we want just the two,' " he said. "That doesn't happen in our business."

Viacom further clarifies that the “penalty” is simply the difference between the standard rates and the significant "discount" Cablevision negotiated -- multiplied over the number of years in the deal.

And if there's going to be any fuss over whether Cablevision has standing to pursue such injuries, the cable distributor says later in its complaint that "absent Viacom's foreclosure of competing general programming networks, Cablevision would have greater flexibility to assemble its programming packages to meet consumer demand. Instead, Viacom's tie-in hinders Cablevision's ability to differentiate its service from rivals, thereby further depriving Cablevision of subscribers (and profits) it otherwise could obtain or retain."

Read More... http://www.hollywoodreporter.com/thr-esq/cablevision-viacom-lawsuit-1-billion-426663

Viacom Wants to Axe Gibson Guitar's Lawsuit Over 'SpongeBob Ukulele'

A musical instrument that features the face of a famous Nickelodeon character produces the sound of dissonance.

Viacom to a California judge: Put down that SpongeBob SquarePants Ukulele!

Last week, Viacom sought to dismiss a lawsuit that was brought in late December by Gibson Guitar Corp., which asserted that the owner of the Nickelodeon TV network was promoting various products in the United States that infringed its trademark rights to the words and design of the "Flying V," its more than five-decade-old electric guitar known for its distinctive look.

But Viacom says that Gibson has identified only one product  -- a SpongeBob ukulele -- and that the instrument is not manufactured or sold inside the country. As a result, Viacom is looking to have the case tossed because of a lack of subject matter jurisdiction.

This isn't the first time that Viacom and Gibson have tangled in court.
Most notably, Gibson Guitar sued Viacom five years ago for allegedly violating a patent on "technology for simulating a musical performance" for the video game Guitar Hero, which was originally created by Harmonix, then owned by Viacom. The lawsuit was settled in 2010.

Now the companies are back in a courtroom.

In the lawsuit, Gibson claims that Viacom intended to cause "confusion, mistake or deception including the misleading of consumers into mistakenly believing that the Defendants' Unauthorized Products are made directly by Gibson pursuant to Gibson's strict quality control standards or Gibson has authorized or licensed the use by Defendants of the Trademark for those products."

But Viacom says that Gibson's claim "is doomed as a matter of law" because none of the alleged infringing acts were performed inside the United States.

Viacom says the SpongeBob ukulele was manufactured in China and offered for sale by U.K. musical-instruments vendor John Hornby Skewes & Co. That company had a license on SpongeBob trademarks, but Viacom adds that the licensing agreement expressly precludes the marketing of the ukuleles in the United States.

A judge is asked to dismiss the case on jurisdictional grounds. Among the cases cited as precedent is a lawsuit brought by Mike Love of The Beach Boys over the sale of an album of "cover versions." The lawsuit was knocked out after a court found that the album was conceived in the United Kingdom and manufactured in Germany, with no sales in the United States. When it got to the Ninth Circuit in 2010, a circuit judge remarked snarkily, "Love wishes they all could be California torts."

Read More... http://www.hollywoodreporter.com/thr-esq/viacom-wants-axe-gibson-guitars-420339