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CPTWG MEETING #97CPTWG MEETING #97May 31, 2006May 31, 2006

Legislative/Litigation UpdateLegislative/Litigation Update

Jim BurgerJim Burgerjburger@dowlohnes.comjburger@dowlohnes.com

CPTWG MEETING #97CPTWG MEETING #97May 31, 2006May 31, 2006

Legislative/Litigation UpdateLegislative/Litigation Update

Jim BurgerJim Burgerjburger@dowlohnes.comjburger@dowlohnes.com

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OverviewOverviewOverviewOverview LegislationLegislation

Perform Act (S. 2644/H.R. 5361)Perform Act (S. 2644/H.R. 5361) Orphan Works Act of 2006 (H.R. 5439)Orphan Works Act of 2006 (H.R. 5439) Intellectual Property Act of 2006 (draft)Intellectual Property Act of 2006 (draft) Section 115 Reform Act of 2006 (draft)Section 115 Reform Act of 2006 (draft) Consumer Competition and Broadband Promotion Act (draft)Consumer Competition and Broadband Promotion Act (draft) French Implementation of EU Copyright Directive French Implementation of EU Copyright Directive Proposed Australian Copyright ReformsProposed Australian Copyright Reforms WIPO Broadcasting TreatyWIPO Broadcasting Treaty

LitigationLitigation Atlantic Recording Corp. v. XM Satellite Radio, Inc.Atlantic Recording Corp. v. XM Satellite Radio, Inc. Macrovision v. Sima Products Corp.Macrovision v. Sima Products Corp. Twentieth Century Fox et al. v. Cablevision Systems Corp.Twentieth Century Fox et al. v. Cablevision Systems Corp.

LegislationLegislation Perform Act (S. 2644/H.R. 5361)Perform Act (S. 2644/H.R. 5361) Orphan Works Act of 2006 (H.R. 5439)Orphan Works Act of 2006 (H.R. 5439) Intellectual Property Act of 2006 (draft)Intellectual Property Act of 2006 (draft) Section 115 Reform Act of 2006 (draft)Section 115 Reform Act of 2006 (draft) Consumer Competition and Broadband Promotion Act (draft)Consumer Competition and Broadband Promotion Act (draft) French Implementation of EU Copyright Directive French Implementation of EU Copyright Directive Proposed Australian Copyright ReformsProposed Australian Copyright Reforms WIPO Broadcasting TreatyWIPO Broadcasting Treaty

LitigationLitigation Atlantic Recording Corp. v. XM Satellite Radio, Inc.Atlantic Recording Corp. v. XM Satellite Radio, Inc. Macrovision v. Sima Products Corp.Macrovision v. Sima Products Corp. Twentieth Century Fox et al. v. Cablevision Systems Corp.Twentieth Century Fox et al. v. Cablevision Systems Corp.

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LegislationLegislationLegislationLegislation

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Perform Act of 2006Perform Act of 2006Perform Act of 2006Perform Act of 2006

Senate version (S. 2644) introduced April 25; Senate version (S. 2644) introduced April 25; House bill (H.R. 5361) introduced May 11House bill (H.R. 5361) introduced May 11 House and Senate bills are virtually identicalHouse and Senate bills are virtually identical

Senate Judiciary Committee Hearing -- April 26Senate Judiciary Committee Hearing -- April 26 Testimony from both sidesTestimony from both sides

In favor: Artists, Labels (Warner)In favor: Artists, Labels (Warner) Opposed: Other artists, XM Radio, NAB, Live365 Opposed: Other artists, XM Radio, NAB, Live365

Consumer Electronics Retailer CoalitionConsumer Electronics Retailer Coalition Perform Act interferes with lawful uses of CE Perform Act interferes with lawful uses of CE

productsproducts Purpose of Act is “to limit the options of honest Purpose of Act is “to limit the options of honest

people”people”

Senate version (S. 2644) introduced April 25; Senate version (S. 2644) introduced April 25; House bill (H.R. 5361) introduced May 11House bill (H.R. 5361) introduced May 11 House and Senate bills are virtually identicalHouse and Senate bills are virtually identical

Senate Judiciary Committee Hearing -- April 26Senate Judiciary Committee Hearing -- April 26 Testimony from both sidesTestimony from both sides

In favor: Artists, Labels (Warner)In favor: Artists, Labels (Warner) Opposed: Other artists, XM Radio, NAB, Live365 Opposed: Other artists, XM Radio, NAB, Live365

Consumer Electronics Retailer CoalitionConsumer Electronics Retailer Coalition Perform Act interferes with lawful uses of CE Perform Act interferes with lawful uses of CE

productsproducts Purpose of Act is “to limit the options of honest Purpose of Act is “to limit the options of honest

people”people”

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Perform Act of 2006 (cont.)Perform Act of 2006 (cont.)Perform Act of 2006 (cont.)Perform Act of 2006 (cont.) Satellite Radio Providers Satellite Radio Providers

Cannot authorize, cause, enable or induce users to make copies Cannot authorize, cause, enable or induce users to make copies of satellite radio contentof satellite radio content

Must use “reasonably available, technologically feasible and Must use “reasonably available, technologically feasible and economically reasonable” technology to prevent such copyingeconomically reasonable” technology to prevent such copying

““Reasonable Recording” ExceptionReasonable Recording” Exception Recording of content permissible only if technology permitsRecording of content permissible only if technology permits   

““Automatic recording;” or Automatic recording;” or Playback based on specific programs, time periods, or channelsPlayback based on specific programs, time periods, or channels

Exception does Exception does notnot apply to devices that apply to devices that Enable recording or playback based on specific songs, artists, Enable recording or playback based on specific songs, artists,

genres or other user preferences;genres or other user preferences; Allow users to change the order of songs for playback; orAllow users to change the order of songs for playback; or Permit users to transfer the songs to other devices, except for Permit users to transfer the songs to other devices, except for

use over a home networkuse over a home network

Satellite Radio Providers Satellite Radio Providers Cannot authorize, cause, enable or induce users to make copies Cannot authorize, cause, enable or induce users to make copies

of satellite radio contentof satellite radio content Must use “reasonably available, technologically feasible and Must use “reasonably available, technologically feasible and

economically reasonable” technology to prevent such copyingeconomically reasonable” technology to prevent such copying ““Reasonable Recording” ExceptionReasonable Recording” Exception

Recording of content permissible only if technology permitsRecording of content permissible only if technology permits    ““Automatic recording;” or Automatic recording;” or Playback based on specific programs, time periods, or channelsPlayback based on specific programs, time periods, or channels

Exception does Exception does notnot apply to devices that apply to devices that Enable recording or playback based on specific songs, artists, Enable recording or playback based on specific songs, artists,

genres or other user preferences;genres or other user preferences; Allow users to change the order of songs for playback; orAllow users to change the order of songs for playback; or Permit users to transfer the songs to other devices, except for Permit users to transfer the songs to other devices, except for

use over a home networkuse over a home network

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Orphan Works Act of 2006 (H.R. 5439)Orphan Works Act of 2006 (H.R. 5439)Orphan Works Act of 2006 (H.R. 5439)Orphan Works Act of 2006 (H.R. 5439)

Introduced May 23 by Rep. Lamar SmithIntroduced May 23 by Rep. Lamar Smith Creates guidelines for use of copyrighted material Creates guidelines for use of copyrighted material

when original owner cannot be foundwhen original owner cannot be found Among other things, the billAmong other things, the bill

Outlines steps potential user must undertake before Outlines steps potential user must undertake before using a workusing a work

Requires use of pay search tools when reasonableRequires use of pay search tools when reasonable Provides that owner can recover attorneys fees if user Provides that owner can recover attorneys fees if user

refuses to pay reasonable royaltyrefuses to pay reasonable royalty Establishes definition of reasonable compensationEstablishes definition of reasonable compensation Provides that lack of visible copyright information is Provides that lack of visible copyright information is

insufficient to deem work an orphan workinsufficient to deem work an orphan work

Introduced May 23 by Rep. Lamar SmithIntroduced May 23 by Rep. Lamar Smith Creates guidelines for use of copyrighted material Creates guidelines for use of copyrighted material

when original owner cannot be foundwhen original owner cannot be found Among other things, the billAmong other things, the bill

Outlines steps potential user must undertake before Outlines steps potential user must undertake before using a workusing a work

Requires use of pay search tools when reasonableRequires use of pay search tools when reasonable Provides that owner can recover attorneys fees if user Provides that owner can recover attorneys fees if user

refuses to pay reasonable royaltyrefuses to pay reasonable royalty Establishes definition of reasonable compensationEstablishes definition of reasonable compensation Provides that lack of visible copyright information is Provides that lack of visible copyright information is

insufficient to deem work an orphan workinsufficient to deem work an orphan work

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Intellectual Property Act of 2006Intellectual Property Act of 2006Intellectual Property Act of 2006Intellectual Property Act of 2006

Draft bill circulated by Rep. Lamar Smith in AprilDraft bill circulated by Rep. Lamar Smith in April Expands criminal enforcement for copyright Expands criminal enforcement for copyright

infringementinfringement Liability for attempting or conspiring to infringe Liability for attempting or conspiring to infringe

copyrightscopyrights Penalties for first violation increased from 5 to 10 Penalties for first violation increased from 5 to 10

years; subsequent violations from 10 to 20 yearsyears; subsequent violations from 10 to 20 years Broadens DMCABroadens DMCA

Expands definition of “trafficking in” technology that Expands definition of “trafficking in” technology that circumvents copy protectioncircumvents copy protection No one may “No one may “make, import, export, obtain control of, or make, import, export, obtain control of, or

possess” tools that would permit circumventionpossess” tools that would permit circumvention

Draft bill circulated by Rep. Lamar Smith in AprilDraft bill circulated by Rep. Lamar Smith in April Expands criminal enforcement for copyright Expands criminal enforcement for copyright

infringementinfringement Liability for attempting or conspiring to infringe Liability for attempting or conspiring to infringe

copyrightscopyrights Penalties for first violation increased from 5 to 10 Penalties for first violation increased from 5 to 10

years; subsequent violations from 10 to 20 yearsyears; subsequent violations from 10 to 20 years Broadens DMCABroadens DMCA

Expands definition of “trafficking in” technology that Expands definition of “trafficking in” technology that circumvents copy protectioncircumvents copy protection No one may “No one may “make, import, export, obtain control of, or make, import, export, obtain control of, or

possess” tools that would permit circumventionpossess” tools that would permit circumvention

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Intellectual Property Act of 2006 (cont.)Intellectual Property Act of 2006 (cont.)Intellectual Property Act of 2006 (cont.)Intellectual Property Act of 2006 (cont.)

Expanded DOJ enforcement powerExpanded DOJ enforcement power DOJ permitted to use wiretaps in DOJ permitted to use wiretaps in

Criminal copyright casesCriminal copyright casesTrade secret theftTrade secret theftTrafficking in counterfeit goodsTrafficking in counterfeit goods

New provisions on civil forfeiture New provisions on civil forfeiture Assets (e.g., computers) used to engage in Assets (e.g., computers) used to engage in

piracy are subject to forfeiture and destructionpiracy are subject to forfeiture and destruction

Expanded DOJ enforcement powerExpanded DOJ enforcement power DOJ permitted to use wiretaps in DOJ permitted to use wiretaps in

Criminal copyright casesCriminal copyright casesTrade secret theftTrade secret theftTrafficking in counterfeit goodsTrafficking in counterfeit goods

New provisions on civil forfeiture New provisions on civil forfeiture Assets (e.g., computers) used to engage in Assets (e.g., computers) used to engage in

piracy are subject to forfeiture and destructionpiracy are subject to forfeiture and destruction

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Section 115 Reform Act of 2006Section 115 Reform Act of 2006Section 115 Reform Act of 2006Section 115 Reform Act of 2006

Draft circulated in May; hearing May 16 before Draft circulated in May; hearing May 16 before House Subcommittee on Courts, Internet & IPHouse Subcommittee on Courts, Internet & IP

New approach to compulsory license for digital New approach to compulsory license for digital musicmusic Aims to address whether sale of digital music is covered Aims to address whether sale of digital music is covered

under under § 114 (public performance) or § 115 (distribution)§ 114 (public performance) or § 115 (distribution) Amends compulsory license to permit distribution of Amends compulsory license to permit distribution of

digital music via download or streamingdigital music via download or streaming Establishes “general designated agent” and 6 “designated Establishes “general designated agent” and 6 “designated

agents” to oversee issuance of licensesagents” to oversee issuance of licenses Provides for retroactive royalty for existing digital worksProvides for retroactive royalty for existing digital works

RIAA testimony: Bill leaves many music RIAA testimony: Bill leaves many music licensing issues unresolvedlicensing issues unresolved

Draft circulated in May; hearing May 16 before Draft circulated in May; hearing May 16 before House Subcommittee on Courts, Internet & IPHouse Subcommittee on Courts, Internet & IP

New approach to compulsory license for digital New approach to compulsory license for digital musicmusic Aims to address whether sale of digital music is covered Aims to address whether sale of digital music is covered

under under § 114 (public performance) or § 115 (distribution)§ 114 (public performance) or § 115 (distribution) Amends compulsory license to permit distribution of Amends compulsory license to permit distribution of

digital music via download or streamingdigital music via download or streaming Establishes “general designated agent” and 6 “designated Establishes “general designated agent” and 6 “designated

agents” to oversee issuance of licensesagents” to oversee issuance of licenses Provides for retroactive royalty for existing digital worksProvides for retroactive royalty for existing digital works

RIAA testimony: Bill leaves many music RIAA testimony: Bill leaves many music licensing issues unresolvedlicensing issues unresolved

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Consumer Competition & Broadband Consumer Competition & Broadband Promotion ActPromotion Act

Consumer Competition & Broadband Consumer Competition & Broadband Promotion ActPromotion Act

Senate Democratic Staff working draft (May Senate Democratic Staff working draft (May 24)24)

Would give FCC authority to implement Would give FCC authority to implement broadcast flag broadcast flag Fairly similar to Stevens BillFairly similar to Stevens Bill Major difference - RAND issueMajor difference - RAND issue

Also includes audio flag provision – different Also includes audio flag provision – different than Stevens:than Stevens: Providers of digital audio devices must adopt Providers of digital audio devices must adopt

technology to protect “disaggregation and technology to protect “disaggregation and indiscriminate redistribution of content”indiscriminate redistribution of content”

Senate Democratic Staff working draft (May Senate Democratic Staff working draft (May 24)24)

Would give FCC authority to implement Would give FCC authority to implement broadcast flag broadcast flag Fairly similar to Stevens BillFairly similar to Stevens Bill Major difference - RAND issueMajor difference - RAND issue

Also includes audio flag provision – different Also includes audio flag provision – different than Stevens:than Stevens: Providers of digital audio devices must adopt Providers of digital audio devices must adopt

technology to protect “disaggregation and technology to protect “disaggregation and indiscriminate redistribution of content”indiscriminate redistribution of content”

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Law on Author Rights and Related Law on Author Rights and Related Rights in the Information SocietyRights in the Information Society

Law on Author Rights and Related Law on Author Rights and Related Rights in the Information SocietyRights in the Information Society

French implementation of EU Copyright Directive French implementation of EU Copyright Directive National Assembly version passed in March National Assembly version passed in March

Would require music retailers to share DRM Would require music retailers to share DRM “interoperability” information “interoperability” information

– Goal is to ensure that consumers can play any downloaded Goal is to ensure that consumers can play any downloaded song on any MP3 playersong on any MP3 player

Senate passed amended version May 11Senate passed amended version May 11Would create regulatory authority to oversee music Would create regulatory authority to oversee music

policy issues, including interoperabilitypolicy issues, including interoperability– Could require retailers to share DRM codeCould require retailers to share DRM code

– Exemption from disclosure requirement if rights holders Exemption from disclosure requirement if rights holders accept limits on interoperabilityaccept limits on interoperability

Committee of 14Committee of 14

French implementation of EU Copyright Directive French implementation of EU Copyright Directive National Assembly version passed in March National Assembly version passed in March

Would require music retailers to share DRM Would require music retailers to share DRM “interoperability” information “interoperability” information

– Goal is to ensure that consumers can play any downloaded Goal is to ensure that consumers can play any downloaded song on any MP3 playersong on any MP3 player

Senate passed amended version May 11Senate passed amended version May 11Would create regulatory authority to oversee music Would create regulatory authority to oversee music

policy issues, including interoperabilitypolicy issues, including interoperability– Could require retailers to share DRM codeCould require retailers to share DRM code

– Exemption from disclosure requirement if rights holders Exemption from disclosure requirement if rights holders accept limits on interoperabilityaccept limits on interoperability

Committee of 14Committee of 14

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Australia: Proposed Copyright ReformsAustralia: Proposed Copyright ReformsAustralia: Proposed Copyright ReformsAustralia: Proposed Copyright Reforms

Australia AG proposed May 14Australia AG proposed May 14 Reforms would dramatically expand permitted uses Reforms would dramatically expand permitted uses

of copyrighted worksof copyrighted works Permit time shifting of TV and radio programs for a Permit time shifting of TV and radio programs for a

single later usesingle later use Allow “format shifting” of music, newspapers and Allow “format shifting” of music, newspapers and

books (books (i.ei.e., copy onto iPods, etc.) for personal use., copy onto iPods, etc.) for personal use Expand exceptions for use of copyrighted materials Expand exceptions for use of copyrighted materials

by schools, museums and librariesby schools, museums and libraries Allow use of copyrighted materials for parody/satireAllow use of copyrighted materials for parody/satire Provide new enforcement measures to combat piracyProvide new enforcement measures to combat piracy

Lower burden to establish copyright infringementLower burden to establish copyright infringement Legislation not yet introduced, but expected soonLegislation not yet introduced, but expected soon

Australia AG proposed May 14Australia AG proposed May 14 Reforms would dramatically expand permitted uses Reforms would dramatically expand permitted uses

of copyrighted worksof copyrighted works Permit time shifting of TV and radio programs for a Permit time shifting of TV and radio programs for a

single later usesingle later use Allow “format shifting” of music, newspapers and Allow “format shifting” of music, newspapers and

books (books (i.ei.e., copy onto iPods, etc.) for personal use., copy onto iPods, etc.) for personal use Expand exceptions for use of copyrighted materials Expand exceptions for use of copyrighted materials

by schools, museums and librariesby schools, museums and libraries Allow use of copyrighted materials for parody/satireAllow use of copyrighted materials for parody/satire Provide new enforcement measures to combat piracyProvide new enforcement measures to combat piracy

Lower burden to establish copyright infringementLower burden to establish copyright infringement Legislation not yet introduced, but expected soonLegislation not yet introduced, but expected soon

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WIPO Broadcast TreatyWIPO Broadcast TreatyWIPO Broadcast TreatyWIPO Broadcast Treaty Draft Approved at May 1-5Draft Approved at May 1-5 Provides 50 IPR in Signal to Broadcasters in Addition to Any Provides 50 IPR in Signal to Broadcasters in Addition to Any

CopyrightsCopyrights Exclusive right to retransmit broadcasts by any means, including Exclusive right to retransmit broadcasts by any means, including

rebroadcast, retransmission by wire, & retransmission over rebroadcast, retransmission by wire, & retransmission over computer networkscomputer networks

Exclusive right of authorizing fixation of broadcasts Exclusive right of authorizing fixation of broadcasts Exclusive right of authorizing direct or indirect reproduction, in any Exclusive right of authorizing direct or indirect reproduction, in any

manner or form, of fixations of broadcasts manner or form, of fixations of broadcasts Contracting Parties to provide adequate legal protection & effective Contracting Parties to provide adequate legal protection & effective

legal remedies against the circumvention of effective technological legal remedies against the circumvention of effective technological measures used by broadcasting organizations in connection with the measures used by broadcasting organizations in connection with the exercise of their rights under this Treaty exercise of their rights under this Treaty

Broadcasters claim need protection against signal theft of World Cup Broadcasters claim need protection against signal theft of World Cup Soccer GamesSoccer Games

Opponents concerned about broad rights far beyond signal theftOpponents concerned about broad rights far beyond signal theft Meeting planned in September & Diplomatic Conference in ‘07Meeting planned in September & Diplomatic Conference in ‘07

Draft Approved at May 1-5Draft Approved at May 1-5 Provides 50 IPR in Signal to Broadcasters in Addition to Any Provides 50 IPR in Signal to Broadcasters in Addition to Any

CopyrightsCopyrights Exclusive right to retransmit broadcasts by any means, including Exclusive right to retransmit broadcasts by any means, including

rebroadcast, retransmission by wire, & retransmission over rebroadcast, retransmission by wire, & retransmission over computer networkscomputer networks

Exclusive right of authorizing fixation of broadcasts Exclusive right of authorizing fixation of broadcasts Exclusive right of authorizing direct or indirect reproduction, in any Exclusive right of authorizing direct or indirect reproduction, in any

manner or form, of fixations of broadcasts manner or form, of fixations of broadcasts Contracting Parties to provide adequate legal protection & effective Contracting Parties to provide adequate legal protection & effective

legal remedies against the circumvention of effective technological legal remedies against the circumvention of effective technological measures used by broadcasting organizations in connection with the measures used by broadcasting organizations in connection with the exercise of their rights under this Treaty exercise of their rights under this Treaty

Broadcasters claim need protection against signal theft of World Cup Broadcasters claim need protection against signal theft of World Cup Soccer GamesSoccer Games

Opponents concerned about broad rights far beyond signal theftOpponents concerned about broad rights far beyond signal theft Meeting planned in September & Diplomatic Conference in ‘07Meeting planned in September & Diplomatic Conference in ‘07

LitigationLitigationLitigationLitigation

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Atlantic Recording Corp. et al. v. Atlantic Recording Corp. et al. v. XM Satellite Radio, Inc.XM Satellite Radio, Inc.

Atlantic Recording Corp. et al. v. Atlantic Recording Corp. et al. v. XM Satellite Radio, Inc.XM Satellite Radio, Inc.

Recording industry alleges XM Radio’s Recording industry alleges XM Radio’s “Inno” product, which permits users to “Inno” product, which permits users to make and store digital copies of songs, make and store digital copies of songs, violates statutory copyright licenseviolates statutory copyright license

Complaint alleges Inno undermines their Complaint alleges Inno undermines their ability to distribute music through other ability to distribute music through other download services (e.g., iTunes)download services (e.g., iTunes) ““XM subscribers will have little XM subscribers will have little

need ever again to buy legitimate need ever again to buy legitimate copies of Plaintiffs’ sound copies of Plaintiffs’ sound recordings”recordings”

Suit filed May 16 in S.D.N.Y. Suit filed May 16 in S.D.N.Y.

Recording industry alleges XM Radio’s Recording industry alleges XM Radio’s “Inno” product, which permits users to “Inno” product, which permits users to make and store digital copies of songs, make and store digital copies of songs, violates statutory copyright licenseviolates statutory copyright license

Complaint alleges Inno undermines their Complaint alleges Inno undermines their ability to distribute music through other ability to distribute music through other download services (e.g., iTunes)download services (e.g., iTunes) ““XM subscribers will have little XM subscribers will have little

need ever again to buy legitimate need ever again to buy legitimate copies of Plaintiffs’ sound copies of Plaintiffs’ sound recordings”recordings”

Suit filed May 16 in S.D.N.Y. Suit filed May 16 in S.D.N.Y.

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Atlantic Recording Corp. et al. v. Atlantic Recording Corp. et al. v. XM Satellite Radio, Inc. XM Satellite Radio, Inc. (cont.)(cont.)

Atlantic Recording Corp. et al. v. Atlantic Recording Corp. et al. v. XM Satellite Radio, Inc. XM Satellite Radio, Inc. (cont.)(cont.)

Complaint alleges direct and secondary Complaint alleges direct and secondary copyright infringement and state law claimscopyright infringement and state law claims

Plaintiffs seek injunctive relief and statutory, Plaintiffs seek injunctive relief and statutory, compensatory and punitive damagescompensatory and punitive damages Statutory damages could be up to $150,000 per Statutory damages could be up to $150,000 per

workwork Industry response:Industry response:

HRRC: suit ignores AHRA, which would provide for HRRC: suit ignores AHRA, which would provide for royalties on devices like the Inno and no lawsuits royalties on devices like the Inno and no lawsuits permitted under Section 1008permitted under Section 1008

Complaint alleges direct and secondary Complaint alleges direct and secondary copyright infringement and state law claimscopyright infringement and state law claims

Plaintiffs seek injunctive relief and statutory, Plaintiffs seek injunctive relief and statutory, compensatory and punitive damagescompensatory and punitive damages Statutory damages could be up to $150,000 per Statutory damages could be up to $150,000 per

workwork Industry response:Industry response:

HRRC: suit ignores AHRA, which would provide for HRRC: suit ignores AHRA, which would provide for royalties on devices like the Inno and no lawsuits royalties on devices like the Inno and no lawsuits permitted under Section 1008permitted under Section 1008

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Macrovision v. Sima Products Corp.Macrovision v. Sima Products Corp.Macrovision v. Sima Products Corp.Macrovision v. Sima Products Corp. BackgroundBackground

Macrovision’s Analog Copy Macrovision’s Analog Copy Protection (ACP) technology Protection (ACP) technology prevents DVDs from making usable prevents DVDs from making usable analog copies (analog copies (i.ei.e., VHS copies)., VHS copies)

Sima developed hardware that Sima developed hardware that eliminates ACP, allowing users to eliminates ACP, allowing users to make usable copiesmake usable copies

June 2005: Macrovision filed suit in June 2005: Macrovision filed suit in S.D.N.Y alleging violation of DMCA S.D.N.Y alleging violation of DMCA and patent infringementand patent infringement

BackgroundBackground Macrovision’s Analog Copy Macrovision’s Analog Copy

Protection (ACP) technology Protection (ACP) technology prevents DVDs from making usable prevents DVDs from making usable analog copies (analog copies (i.ei.e., VHS copies)., VHS copies)

Sima developed hardware that Sima developed hardware that eliminates ACP, allowing users to eliminates ACP, allowing users to make usable copiesmake usable copies

June 2005: Macrovision filed suit in June 2005: Macrovision filed suit in S.D.N.Y alleging violation of DMCA S.D.N.Y alleging violation of DMCA and patent infringementand patent infringement

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Macrovision v. Sima Products Corp.Macrovision v. Sima Products Corp.Macrovision v. Sima Products Corp.Macrovision v. Sima Products Corp. Recent developmentsRecent developments

April 20: Court preliminarily enjoined Sima from April 20: Court preliminarily enjoined Sima from selling products that circumvent ACPselling products that circumvent ACP Rejected argument that the products don’t violate DMCA Rejected argument that the products don’t violate DMCA

because “primary purpose” is not circumventionbecause “primary purpose” is not circumvention Found no fair use; under DMCA, defense cannot be used Found no fair use; under DMCA, defense cannot be used

by manufacturers or traffickers in circumventing devicesby manufacturers or traffickers in circumventing devices May 15: Sima filed motion for reconsideration of order May 15: Sima filed motion for reconsideration of order

granting injunctiongranting injunction Argues ACP not “Effective Technological Measure” Argues ACP not “Effective Technological Measure”

protected against circumvention under DMCA protected against circumvention under DMCA Also that Sima’s products are designed for lawful Also that Sima’s products are designed for lawful

purposes, not circumventionpurposes, not circumvention

Recent developmentsRecent developments April 20: Court preliminarily enjoined Sima from April 20: Court preliminarily enjoined Sima from

selling products that circumvent ACPselling products that circumvent ACP Rejected argument that the products don’t violate DMCA Rejected argument that the products don’t violate DMCA

because “primary purpose” is not circumventionbecause “primary purpose” is not circumvention Found no fair use; under DMCA, defense cannot be used Found no fair use; under DMCA, defense cannot be used

by manufacturers or traffickers in circumventing devicesby manufacturers or traffickers in circumventing devices May 15: Sima filed motion for reconsideration of order May 15: Sima filed motion for reconsideration of order

granting injunctiongranting injunction Argues ACP not “Effective Technological Measure” Argues ACP not “Effective Technological Measure”

protected against circumvention under DMCA protected against circumvention under DMCA Also that Sima’s products are designed for lawful Also that Sima’s products are designed for lawful

purposes, not circumventionpurposes, not circumvention

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Twentieth Century Fox et al. v. Twentieth Century Fox et al. v. Cablevision Systems Corp.Cablevision Systems Corp.

Twentieth Century Fox et al. v. Twentieth Century Fox et al. v. Cablevision Systems Corp.Cablevision Systems Corp.

Studios and broadcasters sued Cablevision Studios and broadcasters sued Cablevision May 24 in S.D.N.Y.May 24 in S.D.N.Y.

Suit alleges “network DVR” service violates Suit alleges “network DVR” service violates copyright rightscopyright rights Service enables retrieval of recorded programs Service enables retrieval of recorded programs

from central server instead of set-top boxfrom central server instead of set-top box Suit alleges that service violates Cablevision’s Suit alleges that service violates Cablevision’s

license, which permits it to broadcast, but not license, which permits it to broadcast, but not store, the plaintiffs’ programsstore, the plaintiffs’ programs

Plaintiffs seek injunctive relief and damagesPlaintiffs seek injunctive relief and damages

Studios and broadcasters sued Cablevision Studios and broadcasters sued Cablevision May 24 in S.D.N.Y.May 24 in S.D.N.Y.

Suit alleges “network DVR” service violates Suit alleges “network DVR” service violates copyright rightscopyright rights Service enables retrieval of recorded programs Service enables retrieval of recorded programs

from central server instead of set-top boxfrom central server instead of set-top box Suit alleges that service violates Cablevision’s Suit alleges that service violates Cablevision’s

license, which permits it to broadcast, but not license, which permits it to broadcast, but not store, the plaintiffs’ programsstore, the plaintiffs’ programs

Plaintiffs seek injunctive relief and damagesPlaintiffs seek injunctive relief and damages