Lipton, Weinberger & Husick

Dear Doc:

I used to have “rabbit ears” on my TV. On stormy nights, I had to stand “just so” near the left ear to see channel 17, but other than that, it worked just fine. Then the electronics companies and the gub’ment told me that I needed “digital” TV or cable. Now, I like Leave It To Beaver as well as the next guy, but I was not gonna pay $75 a month for that stuff! So I went and got a digital adapter, plugged in my rabbit ears, and quicker than you can say, “Gee Wally!” I had… SNOW. And glitches. And buzzing sound. A whole lotta nuthin’ for my trouble. Don’t get me wrong…Not having TV has saved me lots of time, but I hear there’s a new company called Aereo that will put up an antenna in a good place, link it to a digital video recorder, and let me use the whole thing on the Internet for $8 a month. Is this too good to be true? Can they really do that? How does it work? Won’t the TV stations sue them into the ground? Isn’t that June Cleaver one hot lady?

Signed,

Eddie Haskell

Dear Eddie:

You sure ask a lot of questions for a fictional character! Oh well, here goes:

The FCC, when it set up the “digital transition” for television, calculated reception as follows: “Signal strength calculations are based on the traditional TV reception model assuming an outdoor antenna 30 feet above ground level. Indoor reception may vary significantly.” If you had that kind of antenna, you were in for some great viewing. If not, well, tough luck.

Aereo is a company that has developed a tiny (postage stamp-sized) digital television antenna. They put thousands of them on panels and mount them on buildings where the digital TV signal is strong and clear. Then they link each antenna to a multi-tuner and a DVR, and put that online on the Internet. As long as you live in an area where the broadcast signal could reach you if you had the right antenna, you can sign up for the service for $8 a month (or $80 a year). You then use your computer, tablet, or smartphone (even when you’re not at home!) You only get the stations that broadcast over the air for free (not cable channels) but in major cities, there are a lot of those. As the company president said recently, “The last time I checked, there’s no need to have Desperate Housewives or the Real Housewives of Orange County running on four channels at the same time.”

You are also correct that as soon as they heard about this, the TV stations and networks (Fox, PBS, Univision, ABC/Disney, CBS, NBC) sued Aereo in Federal Court. They claimed that the company was violating copyright by rebroadcasting their signals (see, this IS about copyright law after all!) The TV stations and networks wanted an injunction against Aereo to stop it from doing business. The District Court denied this request, finding that a prior decision in favor of the cable operator CableVision, which provided a DVR service to its customers that operated on big servers, rather than on set-top boxes was legal, also favored what Aereo was doing. The TV guys filed an appeal, of course, and on April 1 (no joke) the Court of Appeals for the Second Circuit upheld the trial court’s denial of an injunction in a 2 to 1 decision. The case will now be scheduled for trial some time in the future, but Aereo has announced that it will expand beyond the New York market to 22 more cities by July 2013. You can go to Aereo.com to see if the service will be coming to an Internet near you, so that you can finally put away those rabbit ears for good.

So there you have it. It’s likely that Aereo’s service will not be shut down by the lawsuits, because it fits an important exception written into the Copyright Law by Congress. It’s likely that many will use the service, and that Aereo will someday do deals with the cable operators to expand the programming that they offer, thus increasing the price. It’s likely that you will still be able to watch Leave It To Beaver. And yes, Eddie, that June Cleaver is one smart, beautiful woman, who can cook a mean pot roast while dressed in pearls and high heels, while being a great mother and wife (and is WAY smarter than her husband.) Please though – no jokes about how Ward disciplines his younger son.

Yours truly,

The “Doc”

– Lawrence A. Husick, Esq.

  Dear Doc:

I hear that soon, many Internet users will start getting warning notices if they illegally share copyrighted materials. Is this true? What happens if I get, say, 6 of these? How do they know?

Signed,

MovieAddict

Dear Addict:

The “Doc” has been watching this gathering storm for some time now.  The “Copyright Alert System” is not a loud tone played on the radio – it’s a big brother kind of system that involves AT&T, Verizon, Time Warner, Comcast and Cablevision – the “Big 5″ Internet service providers (ISPs). They have been working with the RIAA and MPAA (which collectively help to police music and movie rights) and have worried, since Napster was a little itty bitty nuisance, that their content was getting ripped off on the Internet.

As they have explained what they intend to do, it amounts to watching all of the files that are being shared on the Net, and automatically sending nasty notes to anyone sharing what they believe is copyright-protected content.  As they have said, “Initial alerts are merely educational, letting the user know that unauthorized content sharing was detected on their Internet account.”

There are two additional “alert levels” for repeat sharers: an “acknowledgement” that requires the recipient to fill out a form, and a “mitigation” which means that the user’s connection speed may be reduced unless he watches an informative video about piracy. A notice may be appealed if a user feels that it was sent in error, but filing that appeal costs $35.

You can find out a lot about how this all works by going by clicking here.

Of course, it’s not right to infringe copyrights, and owners of content have every right to protect their property.  It remains to be seen whether their big brother programs are accurate, or also sweep in unrelated files with similar names (maybe I just want to call my home video of my Carnival Cruise “Titanic”), fair uses such as student projects, and the like. Time will tell, but it will cost $35.

–Lawrence A. Husick, Esq.

You may have never heard of the Berne Convention but it’s a very import international treaty governing copyrights.  Here’s a brief overview.  The Berne Convention was first adopted in Berne, Switzerland in 1886 and requires its signatory countries to safeguard the copyrights of a work created in other signatory countries as it would protect those of its own country.

This means that if a work is protected by copyright in one Berne Convention nation it is automatically protected in all other Berne Convention nations. Currently, there are 165 countries that are party to the Convention including the United States, which joined on March 1, 1989. Initially, the United States declined to become a party as it would have required drastic changes in its copyright law particularly with regards to moral rights, removal of the general requirement of registration of copyrighted works and elimination of the mandatory copyright notice.

Article 2 of the Convention, which governs the type of work protected, applies to “every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression.” The Berne Convention primarily authorizes two groups of protective rights for copyright works: economic rights and moral rights rooted in the copyright work itself.

Under the Berne Convention, all works are protected for at least 50 years after the author’s death with the following exception: (1) for photography, the minimum term is 25 years from the year the photograph was created; and (2) For cinematography, the minimum term is 50 years after first showing, or, if the work has never been shown, 50 years from the creation date.

The Berne Convention may be thought of as the mother of copyright treaties. Articles from the Berne Convention have been incorporated in several other international copyright treaties. For example, Article 9(2) of the Berne Convention, which addresses the exclusive rights of reproduction has been directly implemented and extended into the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), the WIPO Copyright Treaty, the EU Copyright Directive and the WIPO Performances and Phonograms Treaty. TRIPS Article 30, covering limitations and exemptions to patent law, is also derived from the Berne Convention.

If you would like to learn more about the convention, a good place to start is Wikipedia.

– Ash Tankha

In late November, David Pogue of the New York Times wrote about a hoaxer who plastered Facebook sites with an unsolicited message that stated:

In response to the new Facebook guidelines, I hereby declare that my copyright is attached to all of my personal details, illustrations, comics, paintings, crafts, professional photos and videos, etc. (as a result of the Berner [sic] Convention).

For commercial use of the above my written consent is needed at all times.

Facebook is now an open capital entity. All members are recommended to publish a notice like this, or if you prefer, you may copy and paste this version.

Pogue was correct in referring to the posting as a “hoax”, noting that the warning or notice makes no difference to the legal status of your illustrations, comics, paintings, crafts, professional photos and videos. But why was he correct?

Under the Berne Convention, an international copyright treaty, authors and creators are not required to post a copyright notice or warning as a prerequisite to enforcing their copyrights. Before adoption of the Berne Convention in 1988, if a copyright owner in the United States failed to place a copyright notice — the ubiquitous © — the owner would lose all his rights in the work should there be an infringement. Click this link to review the official word of the U.S. Copyright Office on this subject. Adoption of the Berne convention brought the United States into sync with the rest of world’s copyright practice.  So, in summary, Copyright is a “self-executing” right that arises as soon as a work is “fixed in a tangible medium.” The rights created by copyright law are no longer predicated upon the author’s posting or marking his work with a copyright notice.

Nonetheless, lawyers sill advise their clients to apply a notice. That’s because it still serves a purpose. In the United States, a copyright owner has the right to obtain “statutory damages” for infringement. These are damages that are set forth in the U.S. Copyright Statute and which are set at different amounts for intentional and unintentional (“innocent”) infringement. If you apply a copyright notice to your work, an infringer cannot claim “innocent infringement.”  That’s because the infringer was on notice that you were the copyright owner. In an infringement action this could mean the difference between receiving as much as $100,000 dollars per intentional infringement versus $200 dollars per innocent infringement.

So, like David Pogue said, you don’t need a fancy notice to enforce your rights (“registration” helps but that’s a subject for another newsletter article). However, using the © symbol along with the date and your name serves a purpose.

© 2012 Lipton Weinberger & Husick

–Adam G. Garson, Esq.

Dear Doc:

I heard that some insanity has recently infected the Republican Study Committee, when it published a memo with the exciting title of “Three Myths About Copyright Law and Where To Start To Fix It”. What gives?

Signed,

M. Mouse

Dear M:

A young staffer at the RSC, Derek Khanna, wrote about our broken copyright law, and on a Friday a couple of weeks ago, the memo was published on an official website of the Republican leadership in the House of Representatives. His memo addressed three issues that the leadership felt needed to be “fixed”: that copyright law is no longer promoting the creation of new works, but has become only about entitlement to payment; that copyright law promotes a free market for works, when, in fact, it is a government-sanctioned monopoly, enforced by fines that are larger than any value created; and that our copyright laws lead to the greatest productivity.

As quickly as you can say, “the Emperor is naked” the large content lobby, principally the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA) called their Congressmen and demanded that Mr. Khanna’s memo be removed. By the very next day, it was gone from the website.  But, as we all tell our kids, the Internet is forever. The memo had been downloaded and preserved for all to read.

The questions asked by Mr. Khanna are really important ones.  After all, the Constitution says that copyright is to last for “limited times” (US Const. Art I, Sec. 8, Cl. 8), and in the early days of the nation, that meant fourteen years, plus another fourteen if the author was still alive and filed for the renewal. In recent years, Congress has responded to the requests (often in the same envelope as campaign contributions) from the content industry by extending the “limited times” to the life of the author plus 70 years, or 95 years if the author is a corporation! The “Mickey Mouse Copyright Term Extension Act” added 20 years to all copyrights, retroactively, and some asked how this extension served the original purpose of copyright, but the Supreme Court decided that “limited times” means anything that Congress says that it means. Period.

As you can see, there may be many things in our copyright law that should be fixed. Certainly Mr. Khanna thought so, but in our system, we often end up with the best Congress that money can buy. Sorry to be so cynical, M., but I am sure that our friends at the MPAA and RIAA would rather we continue to hunt down every single person who illegally downloads music and movies (not that the Doc condones such behavior) but that we never, ever, discuss why the penalty for doing so should be thousands of times the “damage” that such downloading causes.  Mr. Khanna’s conclusion, “Current copyright law does not merely distort some markets – rather it destroys entire markets” deserves careful debate. It’s just unlikely that such debate will ever take place in Congress or the Courts.

– Lawrence Husick, Esq.