Published Articles
  1. Oral Argument in the Second Circuit in Aereo Suggests that a Reversal Is in the Offing

    Oral Argument in the Second Circuit in Aereo Suggests that a Reversal Is in the Offing


    The oral argument in WNET et al. v. Aereo before the 2d Circuit panel of Judges Denny Chin and Christopher Droney and Eastern District Judge John Gleeson was long (more than 45 minutes) and spirited. The transcript is here. But the panel’s questions suggest the court may reverse and find that Aereo’s online transmission of live TV performances is an unlicensed public performance violating the Copyright Act.

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  2. Will Aereo’s Internet Streaming Service Survive Second Circuit Review?

    Will Aereo’s Internet Streaming Service Survive Second Circuit Review?


    Innovation breeds copyright litigation. The scenario is often the same. The copyright holder whose market share is eroded by the innovative product claims it infringes its statutory-protected rights. The technologist responds that its innovation is simply another authorized improvement in an evolutionary chain that benefits the public. These arguments are at play in ABC et al. v. Aereo and WNET v.

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  3. Guest Blog Post by Michael Einhorn: Establishing Indirect Lost Profits Resulting from Copyright Infringement

    Guest Blog Post by Michael Einhorn: Establishing Indirect Lost Profits Resulting from Copyright Infringement


     
     
     


     
    Introduction by Andrew Berger
    I am pleased to introduce Michael Einhorn to IP In BRIEF.
    Michael (http://www.mediatechcopy.com) is an economic consultant and expert witness in the areas of intellectual property, media, entertainment, and product design. He is the author of Media, Technology, and Copyright: Integrating Law and Economics (2004) and over seventy related professional articles in intellectual property, economic analysis, and damage valuation.
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  4. Brownmark v. Comedy Partners: Court Finds Fair Use Without Allowing Plaintiff Any Discovery

    Brownmark v. Comedy Partners: Court Finds Fair Use Without Allowing Plaintiff Any Discovery

     

    Faced with a copyright infringement suit where your defense is fair use? Chances are you wouldn’t consider making a motion to dismiss at the outset. Instead, you will most likely contemplate  extensive discovery and an expensive summary judgment motion. Well, think again. The 7th Circuit in Brownmark_Films_LLC_v_Comedy latest recently affirmed the district court’s grant of a motion to dismiss a copyright infringement suit based solely on a side-by-side comparison of the videos in question before the parties had engaged in any discovery.

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  5. How Brands May Navigate the Challenges Raised by ICANN’s Domain Name Expansion

    How Brands May Navigate the Challenges Raised by ICANN’s Domain Name Expansion

     
     

    Sometime in 2013 we may experience the largest expansion of the Internet namespace in history. On June 13, 2012, ICANN (the Internet Corporation for Assigned Numbers and Names) announced the receipt of 1,930 applications from 60 countries for 1,409 new generic top-level domains or gTLDs. (A gTLD is part of the domain name or string to the right of the dot, such as .com., .biz or .org.) A list of applicants is here.

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  6. As a result of Viacom v. YouTube the Future of the Red Flag Standard in DMCA Litigation Is Black

    As a result of Viacom v. YouTube the Future of the Red Flag Standard in DMCA Litigation Is Black


    Thankfully the Second Circuit in Viacom v. YouTube  has reversed Judge Stanton’s see no evil, speak no evil opinion which had granted summary judgment to YouTube. But in response to the “most important” issue the appellate court stated it faced, that court dropped the ball.
    The issue was whether the actual and red flag standards in § 512(c)(1)(A)(i) and (ii) of the DMCA each required actual knowledge of specific and identifiable infringements.

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  7. Andrew Berger to Speak at Intellectual Property and Technology Association at Cornell Law School on Brand Protection

    Andrew Berger to Speak at Intellectual Property and Technology Association at Cornell Law School on Brand Protection


     
    Andrew will speak to the Intellectual Property and Technology Association at Cornell Law School on Tuesday evening March 26, 2012 on How Brands May Protect Themselves Against New Forms of Online Attacks and Infringements. Information about the program is here.

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  8. What Copyright Management Information Does the DMCA Protect?

    What Copyright Management Information Does the DMCA Protect?

     
    The genesis of this post is a recent copyright infringement case we handled that dealt with a relatively unexplored corner of the Digital Millennium Copyright Act (“DMCA), defendant’s removal of copyright management information (CMI) and the statutory damages that arise from that DMCA violation.
    Three DMCA Issues that Divide the Courts
    In researching the DMCA claims, we noted that three issues have divided the courts:
    (a) is CMI as defined in §1202 of the DMCA restricted to digitally encoded information contained in an automated copyright protection or rights management system or does CMI extend to any identifying information about a copyrighted work, digital or not;
    (b) does the DMCA only protect CMI if it’s on the face of a copyrighted work or does protection include CMI that is elsewhere on the page where the work appears; and
    (c) what constitutes a violation of the DMCA for purposes of computing statutory damages.

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  9. Andrew to Moderate Internet Hot Topics Discussion at the ABA Litigation Section Annual Conference in D.C.

    Andrew to Moderate Internet Hot Topics Discussion at the ABA Litigation Section Annual Conference in D.C.


    Andrew will moderate a panel discussion at the ABA Litigation Section’s Annual Conference in D.C.  The topic will be “Internet and Social Media in the Forefront: Current Hot Issues and Developments.” The program will take place on Thursday April 19, 2012 between 3-4 pm.
    Speakers with be Peter Jaszi, Professor of Law at American University Law School; David Perrot, Research Director at Decisionquest; Stanley Pierre-Louis, Vice President and Associate General Counsel for Intellectual Property and Content Protection at Viacom Inc.; and Mozelle Thompson, former Commissioner of the Federal Trade Commission and CEO of Thompson Strategic Consulting.

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  10. How to Protect Your Intellectual Property When Outsourcing

    How to Protect Your Intellectual Property When Outsourcing


    Thinking about outsourcing? Take a deep breadth and you may want sit down till the thought passes. Many outsourcing arrangements fail for a variety of reasons and even when they succeed the costs incurred may be more than the costs saved.
    One of the biggest risks is protecting your intellectual property (“IP”) when it is outsourced. There are no silver bullets that will guarantee protection.

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