3 Copyright Lawsuits That Aren’t Dead Yet

Night of the Living Dead PosterLitigation is a funny thing.

Though it’s pretty easy to track when a lawsuit begins (though not always the dispute that brought about the lawsuit), it can be difficult to determine when a lawsuit is truly over. Between appeals, multiple lawsuits and settlement attempts, it can be nearly impossible to find a true “end” to a case.

Unless a settlement is reached or the Supreme Court becomes involved, there’s rarely a definitive conclusion to a case. But even when one of those things happen, they might not put an end to it completely. Many lawsuits are like a hydra, with new paths opening up as old ones are shut down.

Consider the Superman copyright termination case, in which the heirs to Superman’s two creators have attempted to terminate the original agreements with DC Comics, which is now owned by Warner Brothers. Though often discussed as if it were one case, because it deals with one character, it was actually two cases, one for the heirs of each co-creator, and each case took a different path.

However, after nearly a decade of litigation, Warner scored a tremendous win that seems to have ended the last of the two claims. However, even now, the matter may not still be completely over as the heirs of Jerry Siegel hope to revive their claim with various legal arguments.

However, this complexity does not always come across in the media. The media likes to present lawsuits in clear black-and-white terms with discussions about “winners” and “losers” even though victories are rarely decisive and losses are rarely final.

As such, there are a lot of lawsuits that people think of as being over and done when, in truth, they’re very much active and ongoing. Sometimes it has to do with the time it takes the litigation to make its way through the courts, other times it’s just how the case is presented.

Either way, here are three examples of copyright cases that aren’t dead yet, though, if your read the news coverage, you might think they are.

1. The Aereo Case

Aereo LogoAereo is a TV streaming startup that has been ruffling feathers of broadcasters. The service works by using a series of tiny antennas to record and capture TV signals for both live streaming and DVR-like playback to various devices.

Aereo has argued that each user was only doing what they could legally with their own equipment at home, they were legal. In their reasoning, they leaned heavily on the recent Cablevision remote DVR ruling, which found that Cablevision could operate a remote DVR so long as it operated like a traditional one.

The broadcasters disagreed with Aereo’s logic and filed suit. However a lower court judge refused to grant an injunction against Aereo and that ruling was upheld on appeal. That ruling was touted as a major win for Aereo and was big enough for both FOX and CBS to threaten to stop over the air broadcasting.

But wait. There’s more…

With all of the talk about Aereo’s victory, it’s easy to forget that there hasn’t actually been a trial yet.

The issue both the lower and the appeals court ruled on was whether or not to grant an injunction stopping Aereo from operating before a trial was held.

It’s still at least theoretically possible that the broadcasters could prove their cases in a trial and eventually force Aereo to shutter. To be clear though, the judge does not seem optimistic as the low likelihood of success is why both courts denied the injunction.

However, there is another problem with this case. A competiting and nearly-identical service, appropriately named Aereokiller, is facing a similar lawsuit in a separate circuit. There, broadcasters have had much greater success. This could create a split between the circuits and prompt the Supreme Court to intervene.

In short, while Aereo scored a big win in the short term, it’s long-term prospects are still up for debate.

2. The Google Book Search Case

google-books-logoIn 2005 the Authors Guild filed a lawsuit against Google over its book scanning and search project Google Books. It was followed soon thereafter by the Association of American Publishers and, pretty quickly all three sides began working toward a settlement.

That settlement came to fruition in October 2008 when Google agreed to pay $125 million to settle the lawsuit and create a long-term framework for Google Books to operate. However, that settlement was struck down by the court as being unfair even after it was amended following concerns from the Department of Justice.

But even those who knew that lawsuit was thrown out may have been misled by another false ending, which happened in October of last year when the AAP settled with Google in a limited agreement that didn’t require court review.

But wait. There’s more…

The reason it isn’t over is very simple: The Authors Guild case is ongoing, not even having reached a trial yet.

The absolute latest is that, in September, the case was suspended pending an appeal. Google protested the court allowing the case to move forward as a class action lawsuit and appealed that ruling.

But not only has the Authors Guild case not reached a trial, but we haven’t even necessarily seen all of the potential plaintiffs come forward. Just today, the National Press Photographers Association announced that it was joining a separate suit against Google over Google Book Search.

They join 15 others plaintiffs, including many other photography-related organizations and several individuals in suing over Google Book Search, all in a separate lawsuit from the Authors Guild’s.

This case has been quiet the past year or so, but it is far from over.

The YouTube v. Viacom Case

YouTube LogoIn March of 2007, media giant Viacom made headlines by filing a $1 billion lawsuit against Google, which owns YouTube.

According to the lawsuit, during YouTube’s early years, YouTube made much of its reputation off of infringing clips found on its site and that the site’s behavior was so egregious it didn’t qualify for safe harbor protection under the Digital Millennium Copyright Act, which protects most hosts from liability when a third party uses their service to infringe copyright.

However, the lawsuit seemed to come to an abrupt end when, in June of 2010, a judge ruled in favor of Google, issuing a summary judgment that effectively tossed out the case. According to the judge, there was no proof that Google had actual knowledge of specific infringements and found that there was no way Google could be held liable.

It seemed to be an abrupt end to a very controversial case.

But wait. There’s more…

Viacom appealed the ruling and, when it reached the Appeals Court, Viacom won a reprieve.

Though the Appeals Court upheld key parts of the judge’s ruling that will make it difficult for Viacom to succeed, they overturned the summary judgment saying that the issue of actual knowledge was a matter for a jury to decide.

As such, the case has been kicked back to the lower court and is ongoing right now, with both sides currently debating who has the burden of proof on the key issue of whether YouTube had actual knowledge of specific infringements.

Though Viacom definitely has an uphill battle, the case has a long ways to go.

Bottom Line

Litigation, like many things in life, is not always clearly defined.

There’s not always a clear beginning, a clear ending, a clear victor or a clear loser. The plot of a legal case is rarely linear and there’s almost never a true hero or a true villain.

The narrative of litigation, especially with copyright, is almost always complex and winding. If the parties involved can’t reach a quick settlement, it likely is going to be a long, complex and frustrating process with few clear answers and many difficult questions

However, when presenting litigation, the media feels the need to find the simple narrative, the compelling story to tell and that can result in an oversimplification of the story and what’s going on.

It’s much easier to say “Aereo Wins!” rather than “Aereo Wins Early Ruling, Full Trial Awaits”. While it’s true that the media does this to many topics, litigation is something that’s inherently difficult to fully understand from the outset, making the problem even worse.

So remember, just because someone says a case is over doesn’t necessarily make it true. Even when a case seems to have reached its final conclusion, there may always be another round on the horizon.

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