In the article, “Copyright Capabilities” published by Los Angeles Lawyer, partner Andy White discussed the struggles faced by traditional content providers such as broadcasters and studios to preserve their intellectual property rights and income streams. As consumers shift to experience television, movies and other entertainment through internet-based delivery systems, an array of new methods to misappropriate works without obtaining permission from the owners of those works have increased dramatically. Outdated laws, with no respect for emerging technology, make it difficult for content producers, distributors and lawyers to discern what is permissible.
Andy highlighted the challenges faced by the courts in the 2010 case of Viacom v. YouTube, in which Viacom sought substantial damages for the alleged public performance, display and reproduction of copyrighted clips appearing on YouTube. Ultimately, the Second Circuit ruled that “actual knowledge or awareness of facts or circumstances that indicate specific and identifiable instances of infringement will disqualify a service provider from the safe harbor.” In the less than two years since the Second Circuit issued its opinion in Viacom, the case has served as critical precedent in DMCA safe harbor cases across the country, and its impact could only continue to grow over time.
The author also explored American Broadcasting Companies, Inc. v. Aereo, Inc., in which the Supreme Court will wade into the legality of websites that retransmit television programing which is broadcast over the air, where such retransmission has not been authorized by the owner of the broadcast programming. Just as the contours of the DMCA safe harbors continue to bedevil parties and courts struggling to determine if such safe harbors apply to new (and sometimes innovative) services, Aereo makes clear that even the classic exclusive rights (such as the public performance right) in the Copyright Act may require clarification or revision in order to be brought up to date with the latest technological practices.
Many observers are hoping that the Supreme Court’s forthcoming ruling in the case could bring clarity to the interpretation of these acts in a more modern-day context, but it is only a matter of time before new technologies and new online practices bring an entirely new slew of unanticipated challenges.