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Kevin Milewski

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The U.S. Supreme Court’s busy intellectual property term (with six copyright and trademark cases) rolls on. On March 23, SCOTUS ruled in Allen v. Cooper, 589 U.S. ___, No. 18-877 (Mar. 23, 2020), that states, absent consent, may not be sued for copyright infringement. In particular, SCOTUS held that Congress did not have a sufficient constitutional basis to abrogate states’ sovereign immunity in copyright infringement actions when it passed the Copyright Remedy Clarification Act of 1990 (CRCA). However, the Court noted that, going forward, the ruling would not prohibit Congress from passing a more “tailored” copyright remedy statute if it found a valid basis to suspend sovereign immunity in copyright infringement cases against states.

With the spread of the novel coronavirus (COVID-19), many organizations are requiring or permitting employees to work remotely.  This post is intended to remind employers and employees that in the haste to implement widespread work-from-home strategies, data security concerns cannot be forgotten.

Employers and employees alike should remain vigilant of increased cybersecurity threats, some of which specifically target remote access strategies.  Unfortunately, as noted in a prior blog post, cybercriminals will not be curtailing their efforts to access valuable data during the outbreak, and in fact, will likely take advantage of some of the confusion and communication issues that might arise under the circumstances to perpetrate their schemes.

Employees working from home may be accessing or transmitting company trade secrets as well as personal information of individuals. Inappropriate exposure of either type of data can lead to significant adverse consequences for a company.  Exposure of trade secrets or confidential business information can potentially cause significant business damage or loss. Exposure of personal information can potentially trigger state or federal data breach notification laws, and result in significant liabilities for a company as well as expanded identity theft issues for individuals.  The threat is not only an online concern – physical security is at issue as well. Unauthorized access to printed copies of sensitive documents could lead to additional exposures.

For the film and media distribution industries, this year has been action-packed.  Production budgets are skyrocketing and new digital services have been announced or are launching with each passing month. The streaming wars are upon us. Moreover, the FCC recently voted to treat streaming services as “effective competition” to traditional cable providers (or MVPDs), thereby triggering basic cable rate de-regulation in parts of Hawaii and Massachusetts.

The distribution landscape took yet another unexpected legal twist this week. On November 18, Assistant Attorney General Makan Delrahim announced that the Antitrust Division of the Department of Justice would ask a federal court to terminate the “Paramount Consent Decrees” (the “Decrees”), which have prohibited movie studios from engaging in certain distribution practices with movie theaters since the 1940s. The DOJ filed a motion to terminate the Decrees in federal court in the Southern District of New York on November 22, 2019.  Notably, the DOJ cites streaming services and new technology as a few of the many reasons that the Decrees may no longer be necessary in what the DOJ official sees as today’s highly competitive, consumer-driven content market. Given the volatility of the content licensing space, film licensors and licensees will have to carefully consider how the DOJ’s actions will affect their content rights and options going forward.

This Monday, the Supreme Court unanimously ruled in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. ____ (Mar. 4, 2019), that a copyright owner may commence an infringement suit only when the Copyright Office determines whether or not to register a copyright, as opposed to when the owner submits an application and fee for registration. The widely-followed case resolves a simple question, but has far-reaching practical implications for U.S. copyright litigation.

Fair use can be one of the most difficult issues that copyright lawyers have to address due to decades of varying court rulings applying the multi-factor balancing test, particularly in the face of new technologies that use, modify, and aggregate data in ways not envisioned under the Copyright Act. The Second Circuit’s February 2018 fair use decision in the dispute between Fox News Network, LLC (“Fox”) and TVEyes, Inc. (“TVEyes”) added yet another wrinkle to fair use jurisprudence when the court emphasized market effect over transformative use, seemingly a departure from recent trends in the application of the balancing test. (See Fox News Network, LLC v. TVEyes, Inc., 883 F.3d 169 (2d Cir. 2018)).  In recent weeks, the Supreme Court denied TVEyes’ petition for certiorari, leaving in place the appeals court’s decision; and Fox and TVEyes settled the case, stipulating that TVEyes may no longer make available, distribute, or publicly perform or display Fox’s copyrighted video content.

TVEyes is likely to be an important decision for future fair use cases within the Second Circuit.

With summer concerts and music festivals in full swing, many fans will be surprised to find $145 face value tickets reselling online for $3,000 to $11,000.

On May 11, 2017, New York Attorney General Eric Schneiderman took the most recent step in dealing with this problem, and announced seven settlements in “ticket bot” enforcement actions, calling for settlement payments totaling $4.19 million. This development represents the latest step in Schneiderman’s longstanding and highly publicized efforts to combat unfair ticket resale practices occurring in New York.  The enforcement also highlights the technological methods that ticket brokers use to evade the protective measures of well-known ticket marketplaces or otherwise conceal their online activities.