© 2013 Zing Legal By Karen Kramer Zing Legal | ZING (9464) Liability without Licenses? Overview of Potential Risks for Content Distributors on Mobile

© 2013 Zing Legal ZING (9464) Evolution

© 2013 Zing Legal ZING (9464) Mobility and Multiple Screens More than 80% of 18 to 24 year olds use their phone while watching TV 60% of Americans with income above $50K per year use phones while watching TV Rise of TV Everywhere and streaming video web content on all devices (tablets, game devices, etc.)

© 2013 Zing Legal ZING (9464) Business models for mobile content Licensed content distribution businesses Netflix Hulu Amazon video on demand iTunes Quasi or partially licensed content distribution businesses Flipboard (advertising rev share) YouTube (advertising rev share) Unlicensed content distribution businesses Aereo Ivi Pinterest

© 2013 Zing Legal ZING (9464) Overview of discussion on legal risks 1) Copyright cases in ) Other theories of Liability 3) Risk minimization strategies for content distributors

© 2013 Zing Legal ZING (9464) Copyright Cases Significant copyright cases from 2012 Fox v. Dish ABC v. Aereo WPIX v. IVI Viacom v. YouTube

© 2013 Zing Legal ZING (9464) Fox Broadcasting Co. v. Dish Network United States District Court, CD California Concerned “Autohop” feature: allows automatic skipping of commercials for recorded, prime time television Preliminary injunction denied Purpose of Autohop found to be fair use No contributory or vicarious infringement Use only for time-shifting by consumers in own homes Analogized to Sony (VCR case)

© 2013 Zing Legal ZING (9464) Fox Broadcasting Co. v. Dish Network Intermediary copy made for QA purposes not fair use Although Autohop service, standing alone does not infringe, a market exists for the right to copy and use Fox programs As evidence: Fox licenses copies of programs to companies like Hulu, Netflix, Amazon, and iTunes to view in various (mobile) formats Sony does not render intermediate copies themselves fair use Inherent value of copies causes some degree of harm to Fox However, harm not irreparable for purposes of PI because can compensated monetarily

© 2013 Zing Legal ZING (9464) ABC v. Aereo United States District Court, SDNY Aereo system allows users to rent a remotely located antenna, DVR and Slingbox-equivalent device Plaintiff argued “technology gimmick” Defendant argued 1 unique copy per person fell within protection of Cablevision case (upholding remote DVR system) Court ruled in favor of defendant and denied PI

© 2013 Zing Legal ZING (9464) ABC v. Aereo Case turned on interpretation of “transmit clause” of the Copyright Act Transmit Clause: what it means to “perform or display a work ‘publicly’” Not a discussion of fair use Expansive support for mobile: whether transmission occurs over co-axial cable or Internet, and whether to user’s TV in their home or their mobile device on the street has no bearing on the analysis One unique copy per user was key Any harm to plaintiff’s mobile business and other licensing opportunities not irreparable

© 2013 Zing Legal ZING (9464) WPIX Inc. v. IVI Second Circuit case TV programmers and stations sued company that transmitted shows over the Internet without license Held: streaming service was not a “cable system,” entitled to compulsory licenses, under § 111 of the Copyright Act. Preliminary injunction affirmed. Looked at legislative history § 111 of the Copyright Act created compulsory license scheme to address the issue of poor tv reception via over the air broadcast signals in certain communities by encouraging cable expansion locally (not nationally) A government-mandated internet license would likely undercut private negotiations of content owners

© 2013 Zing Legal ZING (9464) Viacom v. YouTube In 2007, Viacom filed a $1 billion dollar lawsuit against Google alleging copyright violation allowing users to upload and view copyrighted material owned by Viacom In 2010, the District Court granted summary judgment for Google, based on Digital Millennium Copyright Act (DMCA) In 2012, the 2 nd Circuit reversed summary judgment, holding a reasonable jury could find that YouTube had actual knowledge or awareness of specific infringing activity on the website, disqualifying YouTube from DMCA protection

© 2013 Zing Legal ZING (9464) Viacom v. YouTube Second Circuit focused on YouTube employee s showing awareness of infringing activity on YouTube Found this knowledge disqualified YouTube from DMCA Safe Harbor protection Second circuit held that District Court erred in requiring that plaintiff demonstrate “item-specific knowledge” of infringing activity

© 2013 Zing Legal ZING (9464) Beyond copyright: risks of liability Trademark infringement Section 43(a) of Lanham Act prohibits false or misleading designation of origin that is likely to cause mistake or deceive as to affiliation, connection, sponsorship, approval or association of parties Proximity of marks in mobile display Clarity of content source in mobile interfaces State unfair competition or interference with economic relations or contracts Loss of advertising revenue

© 2013 Zing Legal ZING (9464) Risk mitigation strategies for content distributors operating without licenses Be clear about source of content Use no more of a third-party’s mark than necessary to identify on screens (e.g. use ABC or CBS but not the logo to designate source) Give content providers a stake in source of revenue, possible Good DMCA takedown policy for content Trademark takedown policy Allow opt-out mechanisms for content owners, allowing them to opt out of content distribution and aggregation Have user, rather than technology, dictate control over accessing content from different devices

© 2013 Zing Legal ZING (9464) Predictions on direction of case law Intent of service provider will be more significant than specific technology used as cases make their way up to highest courts on appeal (following Grokster)

© 2013 Zing Legal For more information contact: Karen Kramer Founder Zing Legal ZING (9464)