`Washington Update

Jim BurgerDow Lohnes PLLC

Introduction• Intellectual Property

o SOPA/PIPA/OPENo The Litigation Continueso Federal IP Enforcement

• Communicationso AT&T/T-Mobile – what might have beeno Spectrum for Sale?o What is a Fleeting Expletiveo Remain Calm

Legislative Developments – SOPA/PIPA• Stop Online Piracy Act (“SOPA”)

o House Bill introduced by Lamar Smith (R-TX) in Octobero House Judiciary Committee hearing held in Novembero Judiciary Committee markup held in December to resume in

January• PROTECT IP Act (“PIPA”)

o U.S. Senate Bill introduced by Patrick Leahy (D-VT) in May; immediately voted out of Judiciary Committee

o Sen. Ron Wyden (D-OR) placed hold on bill in Mayo Reid to submit PIPA to cloture vote in January

Legislative Developments - OPEN• The Online Protection and Enforcement of Digital Trade

(“OPEN”) Act• Proposed as alternative to SOPA and PIPA• Senate Bill introduced by Sen. Ron Wyden (D-OR) in

December • Rep. Issa (R-CA) introduced OPEN in the House in January

2012• Senate Bill referred to the Finance Committee and the House

Bill referred to the Judiciary Committee

SOPA/PIPA – Apres Le Déluge

• SOPA -oShelved by January 20, 2012 following

Internet-wide protests• PIPAoCloture vote postponed by January 20,

2012 following Internet-wide protests

UMG Recordings v. Veoh Networks (9th Cir.)

• Facts:o Veoh a user-generated video hosting website like YouTubeo 2007 UMG sued Veoh to hold it responsible for infringing music

videos on its siteo 2009 trial court ruled DCMA safe harbor protected Veoh

• Appeals Court Holding:o December 2011, 9th Circuit affirmed trial court ruling that

DMCA safe harbor provisions protected Veoh from liability

EMI v. MP3tunes (SD NY)• Facts:

o In 2007 record labels sued MP3tunes alleging MP3tunes’ “locker” or storage service is the cloud-computing equivalent of a stash box for users to store infringing copies of music

• Ruling:o October 2011 Judge Pauley issued mixed decisiono MP3tunes, as a “digital locker” capable of being protected by DMCA

safe harbors, BUTo MP3tunes was found secondarily liable for failure to remove files it had

specific knowledge were infringingo Odd ruling on public performance right & deduplication

MPAA v. Zediva (CD CA)& Aereo

• Zediva – Last April MPAA member studios filed suit against Zediva - movie “rental” company serving online movies streams from customer-controlled networked DVD playerso August 2011: MPAA granted preliminary injunction

against Zedivao October 2011: Zediva shuts down permanently after

$1.8m settlement with MPAA and member studios• Aereo (née Bamboom Labs)

DVDCCA v. Kaleidescape (CA Sup Ct)

• Kaleidescape – DVD CCA alleged Kaleidescape, CSS licensee, breached its license agreement by using CSS to produce a home entertainment system that copied DVD content to a server for unlimited future playback without the physical DVD disco April 2007 – First Trialo August 2009 – Appealo February (?) 2012 – Second Trial

KimDotcom

Federal IP Enforcement – US v. Megaupload (ED VA)• Federal authorities seized servers and domain names of

Megaupload cyber locker site• Kim Dotcom and other employees/officers charged with

conspiracy to commit racketeering, copyright infringement, money laundering, as well as criminal copyright infringement

• Prosecutors: site earned more than $175 million since 2005, mostly based on copyright infringement

• Does site qualify for DMCA “safe harbor” like so far has protected YouTube from Viacom’s billion $ lawsuit & Veoh from UMG’s suit?

• Criminal secondary liability exist?

Telecommunications

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AT&T / T-Mobile – what might’ve been…

• Timeline of a break-up:o March – AT&T announced intentiono August – DOJ steps in o November – FCC speakso November – AT&T withdraws applicationo December – AT&T abandons intentions

• What happens now? o Does T-Mobile fold in the US, swallowed up by someone else?o Where does AT&T go for spectrum?

Spectrum for Sale• 2010 the FCC asked for permission to conduct

spectrum auctions• 2011 Congress battled itself to work out rules for

how the auctions would work• Washington surprise – House wants it, Senate wants

it, White House wants it and yet, nothing gets done• BREAKING NEWS – PAYROLL TAX

What is a Fleeting Expletive?• Before 2004 - no such thing as a fleeting

expletive

"This is really, really f-ing brilliant!"

What is a Fleeting Expletive?• Before 2004 - no such thing as a fleeting expletive• Then Bono changed everything – FCC changed course• FCC lightened up (not really) – artistic integrity, bona

fide news interview exceptions• 2nd Circuit disses FCC

o Supreme Court disagrees (sort of)o 2nd Circuit disses FCC again

• FCC asks the Supremes for clarity• Now, we wait….• Meanwhile, at the Super Bowl….

Remain CALM• December 13, 2011 – FCC adopted rules

implementing CALM• Software installed• Spot-checks• Complaint enforcement procedure• Waivers