Intellectual Property Law

High Court Asks Obama to Weigh In on Copyright Case; Conflict of Interest Brews

By Ryan Singel, Kevin Poulsen, Sarah Lai Stirland, Kim Zetter, and David Kravets

The Supreme Court is asking the incoming Obama administration whether it wishes to weigh in on an important copyright case. Hollywood's lead attorney in the case, shown above, is Jenner & Block's Donald Verrilli Jr. His former law firm boss is Tom Perrilli, Obama's pick to run the Justice Department's civil division.
David Kravets/Wired.com.

The Supreme Court on Monday asked the incoming Obama administration to weigh in on an important question of copyright law: May cable operators permit customers to store television programming on company servers to be viewed at a later time?

The issue concerns an August ruling(.pdf) by a federal appeals court, which liftedan injunction against Cablevision Systems blocking it from offering customers a recording service that stores programming on the cable company's own servers instead of on viewers' in-house recording devices.

Hollywood and television programmers maintain Cablevision?s service directly infringes their exclusive rights to both reproduce and publicly perform their copyrighted works. On appeal, they told the high court that the copyright case was the most important following the justices' 1984 ruling declaring American consumers had a fair use right to use videocassette machines and record copyrighted movies at home.

Still, a potential conflict of interest on the case within the Obama administration is already brewing, a week before the Illinois Senator assumes the presidency.

On Monday, seven of the nine Supreme Court justices wrotethat the government "is invited to file a brief in this case expressing the views of the United States."

Hollywood's lead attorney on the case is Donald B. Verrilli Jr., a partner in the law firm of Jenner & Block, who successfully defeated Grokster before the high court and was one of the lead lawyers in the Recording Industry Association of America's lawsuit against Jammie Thomas. Verrilli's former boss is Tom Perrelli, who President-elect Barack Obama has tapped to head the Justice Department's civil division. (It should be noted that the Justice Department's Office of the Solicitor General is tasked to litigate on behalf of the United States in the Supreme Court. Obama has nominated Harvard Law School Dean Elena Kagan as solicitor general.)

In 2007, meanwhile, a lower court agreed with Hollywood and blocked Cablevision's service, ruling a distribution license first was required by Cablevision.

But last summer, the 2nd U.S. Circuit Court of Appeals ruled no license was required. Cablevision was not doing any of the copying, the court ruled. Instead, the appellate court ruled any copying would be done by individual customers who have that right.

The appeals court also said that, although a replay of the art was a performance, the performance was a fair-use right of customers. Hence, no license was required.

A decision on the case is not expected until perhaps fall.

See Also:

• Bush Signs Law Creating Copyright Czar
• Online Video-Sharing Sites Score Copyright Victory
• Court: Inmate Cannot Sue U.S. for Copyright Infringement
• No ISP Filtering Under New RIAA Copyright Strategy
• Vote: Who Should Be the First U.S. Copyright Czar?
• 'Orphan Works' Copyright Law Dies Quiet Death
• Judge: Copyright Owners Must Consider 'Fair Use' Before Sending ...
• RIAA Qualifies Statement on No New Copyright Lawsuits
• MPAA Says No Proof Needed in P2P Copyright Infringement Lawsuits ...
• Senate Committee Expands Justice Department Copyright Enforcement ...
• Guns N' Roses Uploader Guilty of Copyright Infringement
• Stifled by Copyright, McCain Asks YouTube to Consider Fair Use ...
• Meet the Latest Copyright Scofflaw -- Meet the GOP
• Universities Baffled By Massive Surge In RIAA Copyright Notices ...
• Music Label's Copyright Argument is Rubbish

Full post as published by Threat Level on January 12, 2009 (boomark / email).