WLF’s Annual End-of-Term Review Assesses Key Supreme Court Free-Enterprise Decisions

The U.S. Supreme Court: October 2015 Term Review

Speakers: The Honorable Jay Stephens, Kirkland & Ellis LLP; Andrew J. Pincus, Mayer Brown LLP; Elizabeth P. Papez, Winston & Strawn LLP; Jeffrey B. Wall, Sullivan & Cromwell LLP

Our speakers discussed Court rulings in the areas of class actions, arbitration, the federal False Claims Act, intellectual property, federal regulation, and property rights.

With New Rights Manager, Facebook Creates New Tool to Fight Against ‘Freebooting’ and Copyright Infringement

facebookIn mid-April, Facebook unveiled a new tool to help copyright holders combat infringing behavior.  The move comes after digital content creators alleged that Facebook was building its growing video-sharing platform by acquiescing to third parties’ posting of videos originally uploaded elsewhere (known as “freebooting”).  Critics of freebooting argue that the practice hurts creators by siphoning off views (and thus ad revenue from them and the original video platform, such as YouTube).  The new tool, called Rights Manager, is Facebook’s attempt to end these illegal practices and encourage digital-content creators to bring more of their content to Facebook’s video-sharing platform. Continue reading

Market-Based Efforts to Fight Online Copyright Piracy Earn a New Ally

copyrightWashington Legal Foundation has long supported industry self-help initiatives, including those aimed at protecting intellectual property rights. The WLF Legal Pulse, for instance, has highlighted industry efforts to self-police copyright infringement and reduce frivolous patent litigation (for example, here and here). On the copyright front, as we’ve previously discussed, websites that facilitate or traffic in unlawfully copied entertainment content, such as cyberlockers, cost the creative industry millions of dollars each year. The latest market-based effort to combat copyright theft is a voluntary agreement between the Motion Picture Association of America (MPAA) and Donuts, Inc. (Donuts). According to the agreement signed on February 9, Donuts, the world’s largest domain-name registry, will designate MPAA as a “Trusted Notifier” and treat MPAA referrals of large-scale piracy expeditiously and with a presumption of credibility. Should Donuts find no holes in an MPAA request, it will suspend or terminate the domain. Continue reading

WLF’s Annual Mid-Term Supreme Court Briefing Addresses Key Free-Enterprise Cases

Participants:

The Hon. Jay B. Stephens, Kirkland & Ellis LLP and Chairman, WLF Legal Policy Advisory Board
Gregory G. Katsas, Jones Day
Melissa Arbus Sherry, Latham & Watkins LLP
Ashley C. Parrish, King & Spalding LLP

Update: Major Media Management Company Signs on to Voluntary Effort to Deter Online Copyright Piracy

copyrightwarningIn a February 17, 2015 post, we applauded a new voluntary program developed by advertising trade associations, the Brand Integrity Program Against Piracy. The program’s goal is to deter the placement of advertisements for legitimate products on websites that help disseminate illegally-copied entertainment content or knockoffs of trademarked products.

This voluntary property-rights protection effort received a considerable boost last week when GroupM, the investment management arm of global media and advertising services giant WPP, formally endorsed the Brand Integrity Program. GroupM’s digital marketing and media partners handle over 32% of the world’s media billings.

As explained in our February post, a trade association-created entity, the Trustworthy Accounting Group (TAG), initiated a program to certify companies that assist advertisers and ad agencies to avoid ad placement on cyberlockers and other undesirable websites. Third-party accounting entities such as Ernst & Young will assess those wishing to be certified. If these companies meet certain effectiveness criteria, TAG will validate them as “Digital Advertising Assurance Providers” (DAAPs).

GroupM is requiring that its partners either be certified as DAAPs or contract with companies that have earned that certification. The joint GroupM-TAG press release explained that TAG will announce the first validated DAAPs before the end of 2015, and that GroupM’s partners must be validated as or hire a DAAP by the end of March 2016.

Online copyright and trademark infringement is a multi-billion-dollar problem for economically critical U.S. businesses. The pursuit of rogue businesses through civil or criminal law enforcement has expanded in recent years, but pirate sites and their creators are quite elusive and the legal process is slow. For instance, it’s been four years since New Zealand officials arrested Megaupload founder Kim Dotcomm, and a decision has yet to be made on his extradition to the U.S.

Voluntary efforts to undermine the revenue stream for cyberlockers and other trafficking sites, therefore, are a critically important weapon against online piracy. TAG’s enlistment of GroupM and its partners is a positive development, one that could accelerate the recruitment of more partners for the Brand Integrity Program Against Piracy.

Copyright Act Submission Hold: Professional Wrestler’s Publicity and Privacy Claims Preempted

copyrightGuest Commentary

by Sara Thornton, a 2015 Judge K.K. Legett Fellow at the Washington Legal Foundation and a student at Texas Tech School of Law.

What do copyright law, a WWE professional wrestler, and ESPN have in common? They were all involved in an appeal before the U.S. Court of Appeals for the Eighth Circuit in Ray v. ESPN, Inc., decided on April 22, 2015. Steve “Wild Thing” Ray sued ESPN under Missouri law for broadcasting WWE rerun matches featuring Ray in the early 1990s.

The specific claims were for (1) invasion of privacy, (2) misappropriation of name, (3) infringement of the right of publicity, and (4) interference with prospective economic advantage. ESPN moved to dismiss the suit, asserting that federal copyright law preempted the state-law claims. The district court construed Ray’s first two claims as being identical under Missouri law, so analyzed them as one. It also assumed that since Ray did not challenge ESPN’s argument that copyright law preempted his first and fourth claims, Ray had waived those claims. The court concluded that the Copyright Act preempted Ray’s remaining misappropriation and right of publicity claims. Continue reading

Will the American Law Institute “Restate” or Try to Rewrite U.S. Copyright Law?

copyrightOn April 24, 2013, House Judiciary Committee Chairman Bob Goodlatte announced that the committee would be undertaking “a wide review of our nation’s copyright laws and related enforcement mechanisms.” Five months later, UC Berkeley School of Law Professor Pamela Samuelson formally requested that the American Law Institute (ALI) prepare a restatement of copyright law. It might seem odd that a prestigious institution like ALI would devote time and resources to restating the “law of copyright” when the U.S. House of Representatives is taking steps to possibly amend the federal Copyright Act. But it is going forward with a Restatement of the Law, Copyright project.

ALI is an organization of academics, lawyers, judges, and other legal professionals that studies various areas of law and prepares treatises that “clarify, modernize, and otherwise improve the law.” Courts and legislatures look upon ALI’s best-known treatises, such as the Restatement of Contracts, as authoritative summaries of state common law—i.e. legal principles derived from judicial decisions. A review of its current projects, though, suggests that ALI is drifting away from its traditional approach.

Professor Samuelson’s letter stated that an ALI copyright project “could provide an invaluable and timely analysis and framework for other reform efforts that are currently underway.” Further on in the letter she implies a much larger ambition when decrying the “long and contentious process” of passing laws that makes “comprehensive reform of the statute . . . unlikely to happen any time soon”: Lawyers, academics, and judges at ALI, she seems to suggest, are better positioned to bring clarity to the law of copyright than elected officials in Congress. Continue reading