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CPTWG MEETING #99CPTWG MEETING #99October 4, 2006October 4, 2006
Legislative/Litigation UpdateLegislative/Litigation Update
Jim BurgerJim [email protected]@dowlohnes.com
CPTWG MEETING #99CPTWG MEETING #99October 4, 2006October 4, 2006
Legislative/Litigation UpdateLegislative/Litigation Update
Jim BurgerJim [email protected]@dowlohnes.com
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OverviewOverviewOverviewOverview Legislative/Regulatory Issues Legislative/Regulatory Issues
Copyright Modernization Act of 2006 (H.R. 6052)Copyright Modernization Act of 2006 (H.R. 6052) IP Enhanced Criminal Enforcement Act of 2006 (H.R. IP Enhanced Criminal Enforcement Act of 2006 (H.R.
5921)5921) Other U.S. Copyright DevelopmentsOther U.S. Copyright Developments WIPO Broadcasting TreatyWIPO Broadcasting Treaty Australian Copyright ReformAustralian Copyright Reform European DevelopmentsEuropean Developments
LitigationLitigation Arista Records LLC et al. v. Lime Wire LLCArista Records LLC et al. v. Lime Wire LLC Cablevision Suits (Twenty Century Fox Cablevision Suits (Twenty Century Fox & & Cartoon Network)Cartoon Network) MGM Studios v. GroksterMGM Studios v. Grokster Atlantic Recording Corp. v. XM Satellite RadioAtlantic Recording Corp. v. XM Satellite Radio CBC Distribution v. Major League Baseball Advance MediaCBC Distribution v. Major League Baseball Advance Media In re Rambus, Inc.In re Rambus, Inc.
Legislative/Regulatory Issues Legislative/Regulatory Issues Copyright Modernization Act of 2006 (H.R. 6052)Copyright Modernization Act of 2006 (H.R. 6052) IP Enhanced Criminal Enforcement Act of 2006 (H.R. IP Enhanced Criminal Enforcement Act of 2006 (H.R.
5921)5921) Other U.S. Copyright DevelopmentsOther U.S. Copyright Developments WIPO Broadcasting TreatyWIPO Broadcasting Treaty Australian Copyright ReformAustralian Copyright Reform European DevelopmentsEuropean Developments
LitigationLitigation Arista Records LLC et al. v. Lime Wire LLCArista Records LLC et al. v. Lime Wire LLC Cablevision Suits (Twenty Century Fox Cablevision Suits (Twenty Century Fox & & Cartoon Network)Cartoon Network) MGM Studios v. GroksterMGM Studios v. Grokster Atlantic Recording Corp. v. XM Satellite RadioAtlantic Recording Corp. v. XM Satellite Radio CBC Distribution v. Major League Baseball Advance MediaCBC Distribution v. Major League Baseball Advance Media In re Rambus, Inc.In re Rambus, Inc.
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Legislative/Regulatory Legislative/Regulatory IssuesIssues
Legislative/Regulatory Legislative/Regulatory IssuesIssues
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Copyright Modernization Act of 2006 Copyright Modernization Act of 2006 (H.R. 6052)(H.R. 6052)
Copyright Modernization Act of 2006 Copyright Modernization Act of 2006 (H.R. 6052)(H.R. 6052)
Introduced Sept. 12 by Rep. Lamar Smith; Introduced Sept. 12 by Rep. Lamar Smith; combines three pending copyright measurescombines three pending copyright measures Section 115 Reform Act of 2006 (SIRA)Section 115 Reform Act of 2006 (SIRA)
Would establish compulsory license for distribution of Would establish compulsory license for distribution of digital music via download or streamingdigital music via download or streaming
Goal is to streamline process of licensing digital musicGoal is to streamline process of licensing digital music Orphan Works Act of 2006Orphan Works Act of 2006
Eliminates copyright infringement liability where user Eliminates copyright infringement liability where user made diligent effort to locate authormade diligent effort to locate author
Copyright Protection Resources Authorization Act Copyright Protection Resources Authorization Act of 2006of 2006 Creates IP task force to assist in international Creates IP task force to assist in international
prosecution of IP infringementprosecution of IP infringement
Introduced Sept. 12 by Rep. Lamar Smith; Introduced Sept. 12 by Rep. Lamar Smith; combines three pending copyright measurescombines three pending copyright measures Section 115 Reform Act of 2006 (SIRA)Section 115 Reform Act of 2006 (SIRA)
Would establish compulsory license for distribution of Would establish compulsory license for distribution of digital music via download or streamingdigital music via download or streaming
Goal is to streamline process of licensing digital musicGoal is to streamline process of licensing digital music Orphan Works Act of 2006Orphan Works Act of 2006
Eliminates copyright infringement liability where user Eliminates copyright infringement liability where user made diligent effort to locate authormade diligent effort to locate author
Copyright Protection Resources Authorization Act Copyright Protection Resources Authorization Act of 2006of 2006 Creates IP task force to assist in international Creates IP task force to assist in international
prosecution of IP infringementprosecution of IP infringement
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Copyright Modernization Act of 2006 (cont.)Copyright Modernization Act of 2006 (cont.)Copyright Modernization Act of 2006 (cont.)Copyright Modernization Act of 2006 (cont.)
SIRA most controversial of the three measuresSIRA most controversial of the three measures Consumer groups, IT companies, broadcasters have Consumer groups, IT companies, broadcasters have
issues with SIRA; Sept. 13 letter to Sensebrenner issues with SIRA; Sept. 13 letter to Sensebrenner Signatories included CEA, EFF, HRRC, NAB, Sirius Signatories included CEA, EFF, HRRC, NAB, Sirius
and XM Radioand XM Radio Argued bill would limit consumers’ rights to copy Argued bill would limit consumers’ rights to copy
digital music for personal usedigital music for personal useNeed license for every digital copy, even cache and Need license for every digital copy, even cache and
buffer copies with no independent economic value buffer copies with no independent economic value Satellite radio providers would incur additional license Satellite radio providers would incur additional license
fees for devices that record programming fees for devices that record programming Bill is “backhanded technology mandate” that will limit Bill is “backhanded technology mandate” that will limit
fair usefair use Bill has been unable to gain momentum; Smith Bill has been unable to gain momentum; Smith
shelved it on Sept. 27shelved it on Sept. 27thth for remainder of session for remainder of session
SIRA most controversial of the three measuresSIRA most controversial of the three measures Consumer groups, IT companies, broadcasters have Consumer groups, IT companies, broadcasters have
issues with SIRA; Sept. 13 letter to Sensebrenner issues with SIRA; Sept. 13 letter to Sensebrenner Signatories included CEA, EFF, HRRC, NAB, Sirius Signatories included CEA, EFF, HRRC, NAB, Sirius
and XM Radioand XM Radio Argued bill would limit consumers’ rights to copy Argued bill would limit consumers’ rights to copy
digital music for personal usedigital music for personal useNeed license for every digital copy, even cache and Need license for every digital copy, even cache and
buffer copies with no independent economic value buffer copies with no independent economic value Satellite radio providers would incur additional license Satellite radio providers would incur additional license
fees for devices that record programming fees for devices that record programming Bill is “backhanded technology mandate” that will limit Bill is “backhanded technology mandate” that will limit
fair usefair use Bill has been unable to gain momentum; Smith Bill has been unable to gain momentum; Smith
shelved it on Sept. 27shelved it on Sept. 27thth for remainder of session for remainder of session
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Intellectual Property Enhanced Criminal Intellectual Property Enhanced Criminal Enforcement Act of 2006Enforcement Act of 2006
Intellectual Property Enhanced Criminal Intellectual Property Enhanced Criminal Enforcement Act of 2006Enforcement Act of 2006
Ch. Sensebrenner Introduced in JulyCh. Sensebrenner Introduced in July Increase criminal penalties for copyright infringementIncrease criminal penalties for copyright infringement
Longer prison sentences for unauthorized trafficking in Longer prison sentences for unauthorized trafficking in musical recordings and unauthorized recording of moviesmusical recordings and unauthorized recording of movies
Criminalizes “attempts” to traffic in circumvention devices Criminalizes “attempts” to traffic in circumvention devices that violate DMCAthat violate DMCA
Authorizes additional funding for DOJ to create IP Authorizes additional funding for DOJ to create IP theft unit, and for FBI and DOJ to investigate theft unit, and for FBI and DOJ to investigate computer crimescomputer crimes
Bill referred to House Judiciary Committee, unlikely to Bill referred to House Judiciary Committee, unlikely to pass in current session; may be reintroduced next yearpass in current session; may be reintroduced next year
Ch. Sensebrenner Introduced in JulyCh. Sensebrenner Introduced in July Increase criminal penalties for copyright infringementIncrease criminal penalties for copyright infringement
Longer prison sentences for unauthorized trafficking in Longer prison sentences for unauthorized trafficking in musical recordings and unauthorized recording of moviesmusical recordings and unauthorized recording of movies
Criminalizes “attempts” to traffic in circumvention devices Criminalizes “attempts” to traffic in circumvention devices that violate DMCAthat violate DMCA
Authorizes additional funding for DOJ to create IP Authorizes additional funding for DOJ to create IP theft unit, and for FBI and DOJ to investigate theft unit, and for FBI and DOJ to investigate computer crimescomputer crimes
Bill referred to House Judiciary Committee, unlikely to Bill referred to House Judiciary Committee, unlikely to pass in current session; may be reintroduced next yearpass in current session; may be reintroduced next year
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Other U.S. Copyright DevelopmentsOther U.S. Copyright DevelopmentsOther U.S. Copyright DevelopmentsOther U.S. Copyright Developments
CEA, RIAA recently addressed copyright issues with Rep. CEA, RIAA recently addressed copyright issues with Rep. BoucherBoucher RIAA sent letter stating CPTWG wasn’t “appropriate forum” to RIAA sent letter stating CPTWG wasn’t “appropriate forum” to
discuss digital radio content protection issues and wouldn’t discuss digital radio content protection issues and wouldn’t participateparticipate
CEA response: RIAA’s letter refusing to participate confirms that CEA response: RIAA’s letter refusing to participate confirms that it has nothing to propose; RIAA simply wants to stop consumers it has nothing to propose; RIAA simply wants to stop consumers from making personal copies of musical worksfrom making personal copies of musical works
Music Publishers threatens musicians with suitMusic Publishers threatens musicians with suit MPA & NMPA wants to shut down guitar tablature websites, MPA & NMPA wants to shut down guitar tablature websites,
where musicians exchange tips about how to play popular songswhere musicians exchange tips about how to play popular songs Claim postings are derivative works of original compositionsClaim postings are derivative works of original compositions
Music publishers say losing royalties from sale of sheet musicMusic publishers say losing royalties from sale of sheet music Suits have been threatened, none filed to dateSuits have been threatened, none filed to date Several sites shut downSeveral sites shut down
CEA, RIAA recently addressed copyright issues with Rep. CEA, RIAA recently addressed copyright issues with Rep. BoucherBoucher RIAA sent letter stating CPTWG wasn’t “appropriate forum” to RIAA sent letter stating CPTWG wasn’t “appropriate forum” to
discuss digital radio content protection issues and wouldn’t discuss digital radio content protection issues and wouldn’t participateparticipate
CEA response: RIAA’s letter refusing to participate confirms that CEA response: RIAA’s letter refusing to participate confirms that it has nothing to propose; RIAA simply wants to stop consumers it has nothing to propose; RIAA simply wants to stop consumers from making personal copies of musical worksfrom making personal copies of musical works
Music Publishers threatens musicians with suitMusic Publishers threatens musicians with suit MPA & NMPA wants to shut down guitar tablature websites, MPA & NMPA wants to shut down guitar tablature websites,
where musicians exchange tips about how to play popular songswhere musicians exchange tips about how to play popular songs Claim postings are derivative works of original compositionsClaim postings are derivative works of original compositions
Music publishers say losing royalties from sale of sheet musicMusic publishers say losing royalties from sale of sheet music Suits have been threatened, none filed to dateSuits have been threatened, none filed to date Several sites shut downSeveral sites shut down
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WIPO Broadcasting TreatyWIPO Broadcasting TreatyWIPO Broadcasting TreatyWIPO Broadcasting Treaty Ten Year Series of MeetingsTen Year Series of Meetings Rome versus Section 325Rome versus Section 325 February 8, 2006 DraftFebruary 8, 2006 Draft
Right of FixationRight of Fixation Right of ReproductionRight of Reproduction TPMTPM 50-year Term50-year Term
Chairman of May SCCR – Calls for DipConChairman of May SCCR – Calls for DipCon General Assembly – October 2General Assembly – October 2
Decision – Two SCCR meetings & if consensus Decision – Two SCCR meetings & if consensus on signal-based approach, DipCon in Nov ‘07on signal-based approach, DipCon in Nov ‘07
Ten Year Series of MeetingsTen Year Series of Meetings Rome versus Section 325Rome versus Section 325 February 8, 2006 DraftFebruary 8, 2006 Draft
Right of FixationRight of Fixation Right of ReproductionRight of Reproduction TPMTPM 50-year Term50-year Term
Chairman of May SCCR – Calls for DipConChairman of May SCCR – Calls for DipCon General Assembly – October 2General Assembly – October 2
Decision – Two SCCR meetings & if consensus Decision – Two SCCR meetings & if consensus on signal-based approach, DipCon in Nov ‘07on signal-based approach, DipCon in Nov ‘07
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Australian Copyright ReformAustralian Copyright ReformAustralian Copyright ReformAustralian Copyright Reform Australian AG circulated draft legislation Sept. 4Australian AG circulated draft legislation Sept. 4thth & 22 & 22ndnd
designed to create new liability for circumventing designed to create new liability for circumventing technological protection measurestechnological protection measures
Certain activities carved out as exceptions:Certain activities carved out as exceptions: Reproducing software to make interoperable productsReproducing software to make interoperable products Reproduction of copyrighted materials by educational Reproduction of copyrighted materials by educational
institutionsinstitutions Inclusion of sound recordings for broadcasting purposesInclusion of sound recordings for broadcasting purposes Circumvention where TPM is obsolete, damaged, defective, Circumvention where TPM is obsolete, damaged, defective,
malfunctioning or unusable, or where necessary to repair the malfunctioning or unusable, or where necessary to repair the TPMTPM
Circumventing regional coding on DVDs and video gamesCircumventing regional coding on DVDs and video games Violations could result in up to 5 years in prison and/or fine of Violations could result in up to 5 years in prison and/or fine of
up to US $45,000 up to US $45,000 Comment period ended Sept. 22; bill expected to be Comment period ended Sept. 22; bill expected to be
introduced in Parliament in Octoberintroduced in Parliament in October
Australian AG circulated draft legislation Sept. 4Australian AG circulated draft legislation Sept. 4thth & 22 & 22ndnd designed to create new liability for circumventing designed to create new liability for circumventing technological protection measurestechnological protection measures
Certain activities carved out as exceptions:Certain activities carved out as exceptions: Reproducing software to make interoperable productsReproducing software to make interoperable products Reproduction of copyrighted materials by educational Reproduction of copyrighted materials by educational
institutionsinstitutions Inclusion of sound recordings for broadcasting purposesInclusion of sound recordings for broadcasting purposes Circumvention where TPM is obsolete, damaged, defective, Circumvention where TPM is obsolete, damaged, defective,
malfunctioning or unusable, or where necessary to repair the malfunctioning or unusable, or where necessary to repair the TPMTPM
Circumventing regional coding on DVDs and video gamesCircumventing regional coding on DVDs and video games Violations could result in up to 5 years in prison and/or fine of Violations could result in up to 5 years in prison and/or fine of
up to US $45,000 up to US $45,000 Comment period ended Sept. 22; bill expected to be Comment period ended Sept. 22; bill expected to be
introduced in Parliament in Octoberintroduced in Parliament in October
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European DevelopmentsEuropean DevelopmentsEuropean DevelopmentsEuropean Developments France’s “Law on Author Rights and Related Rights in the France’s “Law on Author Rights and Related Rights in the
Information Society”Information Society” Enacted by French Parliament June 30Enacted by French Parliament June 30
Requires manufacturers to make their devices play music Requires manufacturers to make their devices play music regardless of DRM formatregardless of DRM format
French iPod users will be able to play music downloaded from French iPod users will be able to play music downloaded from other servicesother services
Users of other devices will be able to play music from iTunesUsers of other devices will be able to play music from iTunes But Apple not required to share all information about its DRM But Apple not required to share all information about its DRM
technologytechnology UK, Sweden, Denmark, Norway and Poland considering UK, Sweden, Denmark, Norway and Poland considering
measures similar to French lawmeasures similar to French law Apple currently negotiating with Scandinavian Apple currently negotiating with Scandinavian
governments over proposed lawsgovernments over proposed laws UK’s national library also recently called for updating of UK’s national library also recently called for updating of
UK copyright law to restrict the use of DRMs that goes UK copyright law to restrict the use of DRMs that goes beyond protection of copyrightsbeyond protection of copyrights
France’s “Law on Author Rights and Related Rights in the France’s “Law on Author Rights and Related Rights in the Information Society”Information Society” Enacted by French Parliament June 30Enacted by French Parliament June 30
Requires manufacturers to make their devices play music Requires manufacturers to make their devices play music regardless of DRM formatregardless of DRM format
French iPod users will be able to play music downloaded from French iPod users will be able to play music downloaded from other servicesother services
Users of other devices will be able to play music from iTunesUsers of other devices will be able to play music from iTunes But Apple not required to share all information about its DRM But Apple not required to share all information about its DRM
technologytechnology UK, Sweden, Denmark, Norway and Poland considering UK, Sweden, Denmark, Norway and Poland considering
measures similar to French lawmeasures similar to French law Apple currently negotiating with Scandinavian Apple currently negotiating with Scandinavian
governments over proposed lawsgovernments over proposed laws UK’s national library also recently called for updating of UK’s national library also recently called for updating of
UK copyright law to restrict the use of DRMs that goes UK copyright law to restrict the use of DRMs that goes beyond protection of copyrightsbeyond protection of copyrights
LitigationLitigationLitigationLitigation
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Arista Records LLC et al. v. Arista Records LLC et al. v. Lime Wire LLCLime Wire LLC
Arista Records LLC et al. v. Arista Records LLC et al. v. Lime Wire LLCLime Wire LLC
LimeWire operates file sharing serviceLimeWire operates file sharing service Record labels brought suit in SDNY Aug. 4 alleging Record labels brought suit in SDNY Aug. 4 alleging
secondary copyright infringement, including secondary copyright infringement, including GroksterGrokster inducementinducement Labels allege that LimeWire encourages users to Labels allege that LimeWire encourages users to
“generously” share music files “generously” share music files LimeWire can review users’ searches and should know of LimeWire can review users’ searches and should know of
infringing activity and know what is being sharedinfringing activity and know what is being shared LimeWire knows its users infringe because it has targeted LimeWire knows its users infringe because it has targeted
users of other P2P servicesusers of other P2P services Answer and counterclaims filed Sept. 25; LimeWire Answer and counterclaims filed Sept. 25; LimeWire
alleges that labels are colluding to create monopoly over alleges that labels are colluding to create monopoly over distribution of digital musicdistribution of digital music
LimeWire operates file sharing serviceLimeWire operates file sharing service Record labels brought suit in SDNY Aug. 4 alleging Record labels brought suit in SDNY Aug. 4 alleging
secondary copyright infringement, including secondary copyright infringement, including GroksterGrokster inducementinducement Labels allege that LimeWire encourages users to Labels allege that LimeWire encourages users to
“generously” share music files “generously” share music files LimeWire can review users’ searches and should know of LimeWire can review users’ searches and should know of
infringing activity and know what is being sharedinfringing activity and know what is being shared LimeWire knows its users infringe because it has targeted LimeWire knows its users infringe because it has targeted
users of other P2P servicesusers of other P2P services Answer and counterclaims filed Sept. 25; LimeWire Answer and counterclaims filed Sept. 25; LimeWire
alleges that labels are colluding to create monopoly over alleges that labels are colluding to create monopoly over distribution of digital musicdistribution of digital music
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Cablevision SuitsCablevision SuitsCablevision SuitsCablevision Suits Parties filed cross motions for summary judgment in both cases Sept. 5Parties filed cross motions for summary judgment in both cases Sept. 5
PlaintiffsPlaintiffs By “retransmitting” content to subscribers, remote DVR By “retransmitting” content to subscribers, remote DVR
makes “public performance” that requires a licensemakes “public performance” that requires a license Service also violates plaintiffs’ exclusive right to make copies of Service also violates plaintiffs’ exclusive right to make copies of
their copyrighted workstheir copyrighted works SonySony is distinguishable: Cablevision, unlike Sony, would have is distinguishable: Cablevision, unlike Sony, would have
“continuing involvement” in providing the service“continuing involvement” in providing the service CablevisionCablevision
Under Under SonySony, provider of devices used to make copies not liable , provider of devices used to make copies not liable for for directdirect copyright infringement; plaintiffs must show indirect copyright infringement; plaintiffs must show indirect infringementinfringement
Works provided via remote DVR are not “public Works provided via remote DVR are not “public performances” performances”
Cablevision is not “performing” works because Customer, not Cablevision is not “performing” works because Customer, not Cablevision, operates the DVRCablevision, operates the DVR
Customers’ personal uses of programs are not “public”Customers’ personal uses of programs are not “public”
Parties filed cross motions for summary judgment in both cases Sept. 5Parties filed cross motions for summary judgment in both cases Sept. 5 PlaintiffsPlaintiffs
By “retransmitting” content to subscribers, remote DVR By “retransmitting” content to subscribers, remote DVR makes “public performance” that requires a licensemakes “public performance” that requires a license
Service also violates plaintiffs’ exclusive right to make copies of Service also violates plaintiffs’ exclusive right to make copies of their copyrighted workstheir copyrighted works
SonySony is distinguishable: Cablevision, unlike Sony, would have is distinguishable: Cablevision, unlike Sony, would have “continuing involvement” in providing the service“continuing involvement” in providing the service
CablevisionCablevision Under Under SonySony, provider of devices used to make copies not liable , provider of devices used to make copies not liable
for for directdirect copyright infringement; plaintiffs must show indirect copyright infringement; plaintiffs must show indirect infringementinfringement
Works provided via remote DVR are not “public Works provided via remote DVR are not “public performances” performances”
Cablevision is not “performing” works because Customer, not Cablevision is not “performing” works because Customer, not Cablevision, operates the DVRCablevision, operates the DVR
Customers’ personal uses of programs are not “public”Customers’ personal uses of programs are not “public”
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Atlantic Recording Corp. v. Atlantic Recording Corp. v. XM Satellite RadioXM Satellite Radio
Atlantic Recording Corp. v. Atlantic Recording Corp. v. XM Satellite RadioXM Satellite Radio
XM filed motion to dismiss July 17XM filed motion to dismiss July 17 Argues inno device is protected under AHRAArgues inno device is protected under AHRA
AHRA prohibits infringement claims based on manufacture, sale or AHRA prohibits infringement claims based on manufacture, sale or consumer use of digital audio recording deviceconsumer use of digital audio recording device
Inno is digital recording device, but not digital download serviceInno is digital recording device, but not digital download service Plaintiffs filed opposition to motion on August 31Plaintiffs filed opposition to motion on August 31
XM’s license permits “evanescent public performances;” does XM’s license permits “evanescent public performances;” does not authorizes users to make permanent copynot authorizes users to make permanent copy Inno users can listen to recorded music without listening to live Inno users can listen to recorded music without listening to live
broadcast; makes inno equivalent to download servicebroadcast; makes inno equivalent to download service Such use “cannibalizes” authorized market for digital downloadsSuch use “cannibalizes” authorized market for digital downloads
AHRA does not immunize XM’s conductAHRA does not immunize XM’s conduct Only applies to claims based on the Only applies to claims based on the act act of manufacturing, importing of manufacturing, importing
or distributing digital audio recording devicesor distributing digital audio recording devices Also immunizes users of these devices, and manufacturers that sell Also immunizes users of these devices, and manufacturers that sell
themthem XM is not engaging in any of these types of conduct, and therefore XM is not engaging in any of these types of conduct, and therefore
cannot rely on AHRAcannot rely on AHRA
XM filed motion to dismiss July 17XM filed motion to dismiss July 17 Argues inno device is protected under AHRAArgues inno device is protected under AHRA
AHRA prohibits infringement claims based on manufacture, sale or AHRA prohibits infringement claims based on manufacture, sale or consumer use of digital audio recording deviceconsumer use of digital audio recording device
Inno is digital recording device, but not digital download serviceInno is digital recording device, but not digital download service Plaintiffs filed opposition to motion on August 31Plaintiffs filed opposition to motion on August 31
XM’s license permits “evanescent public performances;” does XM’s license permits “evanescent public performances;” does not authorizes users to make permanent copynot authorizes users to make permanent copy Inno users can listen to recorded music without listening to live Inno users can listen to recorded music without listening to live
broadcast; makes inno equivalent to download servicebroadcast; makes inno equivalent to download service Such use “cannibalizes” authorized market for digital downloadsSuch use “cannibalizes” authorized market for digital downloads
AHRA does not immunize XM’s conductAHRA does not immunize XM’s conduct Only applies to claims based on the Only applies to claims based on the act act of manufacturing, importing of manufacturing, importing
or distributing digital audio recording devicesor distributing digital audio recording devices Also immunizes users of these devices, and manufacturers that sell Also immunizes users of these devices, and manufacturers that sell
themthem XM is not engaging in any of these types of conduct, and therefore XM is not engaging in any of these types of conduct, and therefore
cannot rely on AHRAcannot rely on AHRA
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MGM Studios v. GroksterMGM Studios v. GroksterMGM Studios v. GroksterMGM Studios v. Grokster StreamCast sole remaining defendant after StreamCast sole remaining defendant after
remand from Supreme Court to district courtremand from Supreme Court to district court District court (C.D. Cal.) granted studios’ motion District court (C.D. Cal.) granted studios’ motion
for summary judgment Sept. 27for summary judgment Sept. 27thth Under Under GroksterGrokster inducement standard, StreamCast inducement standard, StreamCast
distributed its software with intent of encouraging distributed its software with intent of encouraging infringementinfringement StreamCast targeted original Napster usersStreamCast targeted original Napster users Provided technical assistance to users to play Provided technical assistance to users to play
copyrighted content downloaded using StreamCast copyrighted content downloaded using StreamCast softwaresoftware
StreamCast knew system could search for copyrighted StreamCast knew system could search for copyrighted content; it even had a “Top 40” songs categorycontent; it even had a “Top 40” songs category
Business model depended on mass infringing useBusiness model depended on mass infringing use StreamCast took no steps to avoid infringement (e.g., StreamCast took no steps to avoid infringement (e.g.,
filtering technology) filtering technology)
StreamCast sole remaining defendant after StreamCast sole remaining defendant after remand from Supreme Court to district courtremand from Supreme Court to district court
District court (C.D. Cal.) granted studios’ motion District court (C.D. Cal.) granted studios’ motion for summary judgment Sept. 27for summary judgment Sept. 27thth Under Under GroksterGrokster inducement standard, StreamCast inducement standard, StreamCast
distributed its software with intent of encouraging distributed its software with intent of encouraging infringementinfringement StreamCast targeted original Napster usersStreamCast targeted original Napster users Provided technical assistance to users to play Provided technical assistance to users to play
copyrighted content downloaded using StreamCast copyrighted content downloaded using StreamCast softwaresoftware
StreamCast knew system could search for copyrighted StreamCast knew system could search for copyrighted content; it even had a “Top 40” songs categorycontent; it even had a “Top 40” songs category
Business model depended on mass infringing useBusiness model depended on mass infringing use StreamCast took no steps to avoid infringement (e.g., StreamCast took no steps to avoid infringement (e.g.,
filtering technology) filtering technology)
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In re Rambus In re Rambus In re Rambus In re Rambus BackgroundBackground
Rambus, develops computer memory technologies, joined Rambus, develops computer memory technologies, joined standard setting organization (SSO) for such technologiesstandard setting organization (SSO) for such technologies
SSO’s rules obligated members to disclose relevant IPR, which SSO’s rules obligated members to disclose relevant IPR, which only could be included in the standard if licensed on RAND only could be included in the standard if licensed on RAND termsterms
Rambus did not disclose certain patents; once the standard was Rambus did not disclose certain patents; once the standard was adopted, sued members who practiced standard for adopted, sued members who practiced standard for infringementinfringement
FTC brought charges for anticompetitive conduct and unfair FTC brought charges for anticompetitive conduct and unfair competitioncompetition
Decision (FTC) Decision (FTC) SSO disclosure requirements involve implied duty to operate SSO disclosure requirements involve implied duty to operate
cooperatively and in good faithcooperatively and in good faith Ambiguous statements from Rambus about its IPR therefore were Ambiguous statements from Rambus about its IPR therefore were
deceptive and misleadingdeceptive and misleading Rambus’s failure to disclose denied members opportunity to Rambus’s failure to disclose denied members opportunity to
negotiate against excessive royaltiesnegotiate against excessive royalties
BackgroundBackground Rambus, develops computer memory technologies, joined Rambus, develops computer memory technologies, joined
standard setting organization (SSO) for such technologiesstandard setting organization (SSO) for such technologies SSO’s rules obligated members to disclose relevant IPR, which SSO’s rules obligated members to disclose relevant IPR, which
only could be included in the standard if licensed on RAND only could be included in the standard if licensed on RAND termsterms
Rambus did not disclose certain patents; once the standard was Rambus did not disclose certain patents; once the standard was adopted, sued members who practiced standard for adopted, sued members who practiced standard for infringementinfringement
FTC brought charges for anticompetitive conduct and unfair FTC brought charges for anticompetitive conduct and unfair competitioncompetition
Decision (FTC) Decision (FTC) SSO disclosure requirements involve implied duty to operate SSO disclosure requirements involve implied duty to operate
cooperatively and in good faithcooperatively and in good faith Ambiguous statements from Rambus about its IPR therefore were Ambiguous statements from Rambus about its IPR therefore were
deceptive and misleadingdeceptive and misleading Rambus’s failure to disclose denied members opportunity to Rambus’s failure to disclose denied members opportunity to
negotiate against excessive royaltiesnegotiate against excessive royalties
