CLBR Supreme Reflections with Jonathan Handel and Edwin Marger

CLBR SUPREME EDITION

AEREO, THE NSA AND MORE

I.  Opening

  • 225 years ago today George Washington took the oath of office to become the first elected President of the the United States.
  • Berlin and Saigon fell on this day and today is also International Jazz Day.
  • The Silicon Beach Congressional Debate is gaining momentum, with David Kanuth, Ted Lieu and Marianne Williamson all responding favorably.

 

  • An emotional week here in Los Angeles, with Donald Sterling calling into question the Supreme Court’s insistence that racism is over, while the Los Angeles Kings are proving the Don Quixote knows how to skate as they have come back from a 3-0 deficit to force a Game 7 tonight.  I’ve blogged about the Sterling situation and the Kings-Sharks rivalry.
  • The tech world dealt with its own Donald Sterling, as RadiumOne fired its CEO, Gurbaksh Chahal after he escaped with a slap on the wrist from a court over hitting his girlfriend 117 times in 30-minutes.  According to Huffington Post Chahal:

Chahal pleaded guilty to misdemeanor domestic violence and battery charges last week and paid a $500 fine. He ducked 45 felony charges and jail time. Chahal defended himself in a blog post on Sunday. In it, he denied the severity of the abuse but admitted that he “lost [his] temper.” He lashed out at allegations that he beat his girlfriend 117 times, despite the fact that there’s a video of the incident. He called the video “bullshit” and accused the media of spreading misinformation. Chahal also accused his girlfriend of “having unprotected sex for money with other people” and explained that when he confronted her about the discovery, they had a “normal” argument. He claims he only attacked her after she called 911.

  • Finally, as a transition to our special Supreme Court edition, a shout out to Betsy Henthorne, Elena Kagan’s personal assistant, who is now the second person in my family to have completed Georgetown Law at night.


 

II.  ABC v Aereo:  Will Aereo Keep Hanging On

QUESTION PRESENTED

A copyright holder possesses the exclusive right “to perform the copyrighted work publicly.” 17 U.S.C. §106(4). In the Copyright Act of 1976, Congress de- fined the phrase “[t]o perform … ‘publicly’” to include, among other things, “to transmit or otherwise commu- nicate a performance or display of the work … to the public, by means of any device or process, whether the members of the public capable of receiving the perfor- mance or display receive it in the same place or in sepa- rate places and at the same time or at different times.” Id. §101. Congress enacted that provision with the ex- press intent to bring within the scope of the public- performance right services that retransmit over-the-air television broadcasts to the public. Respondent Aereo offers just such a service. Aereo captures over-the-air television broadcasts and, without obtaining authoriza- tion from or compensating anyone, retransmits that programming to tens of thousands of members of the public over the Internet for a profit. According to the Second Circuit, because Aereo sends each of its sub- scribers an individualized transmission of a perfor- mance from a unique copy of each copyrighted pro- gram, it is not transmitting performances “to the pub- lic,” but rather is engaged in tens of thousands of “private” performances to paying strangers.

The question presented is:

Whether a company “publicly performs” a copy- righted television program when it retransmits a broadcast of that program to thousands of paid sub- scribers over the Internet.

Aereo Response:

The core issue in this case is whether a consumer can access and control an individual, remotely locat- ed antenna and digital video recorder, owned by a third party, to record and view local, over-the-air broadcast television programming without subjecting the third party to liability for infringing copyright owners’ exclusive right to perform works “publicly.” It is well settled that a consumer can deploy such equipment at home without infringing copyright. The Second Circuit here affirmed that consumers also may access and operate the same types of equip- ment remotely through the Internet without infringing petitioners’ exclusive public-performance rights. Even though the Second Circuit decided that issue correctly, petitioners have signaled their intention to wage a war of attrition by re-litigating this issue in every market to which Aereo expands its business. Accordingly, Aereo believes it is appropriate for this Court to grant review to affirm the decision below. Respondent notes, however, that the question presented in the petition is not faithful to the district court’s findings and the undisputed facts, and so has reformulated it.

 


JONATHAN HANDEL

Jonathan Handel practices in the areas of entertainment, new media, technology and intellectual property transactions. He brings to his practice a broad range of experience in the entertainment and technology industries, and blogs on these subjects and entertainment labor atDigital Media Law and on theHuffington Post. He also covers entertainment labor and other matters as a Contributing Editor for The Hollywood Reporter.

Mr. Handel was named by the Daily Journal in 2008 as one of the top 100 lawyers in California, and by Law & Politics magazine as a Southern California Super Lawyer in 2013, 2007 and 2006. He has appeared in theinternational, national and local mediaseveral hundred times.

CONTACT INFORMATION

Tel: 310.789.1201
Fax:323.654.5360

 


 

III.  Scalia, Ginsburg Hint on NSA Review; Supremes Weight Cell Phone Searches

Riley v. CaliforniaAfter petitioner’s lawful arrest for possession of loaded firearms, officers twice examined the contents of his cell phone, on his person at the time of his arrest, for evidence linking him to the firearms. The first examination, a cursory one of text entries, occurred at the scene of the arrest; the second, which included viewing photographs and videos, occurred a couple of hours later at the police station.

United States v. Wurie Whether the Fourth Amendment permits the police, without obtaining a warrant, to review the call log of a cell phone found on a person who has been lawfully arrested.

 

EDWIN MARGER

Edwin Marger, has 60 years experience as a Counselor at Law. He is admitted to practice law in all Florida, Georgia and District of Columbia federal, state and district courts. He is a member of the Bar of the U.S. Court of Claims and the U.S. Military Court of Appeals. In addition, Mr. Marger has been admitted to the bar of the 3rd, 4th, 5th, 6th, 8th, and 11th Circuits and the United States Supreme Court.
Two members of the U.S. Supreme Court have indicated that the court will ultimately have to decide the legality of National Security Agency surveillance activities. Antonin Scalia, a leading conservative justice, said the court was not the best body to decide major national security issues because of its lack of expertise. But he indicated that the court would likely decide the issue of whether widespread gathering of telecommunications data violates the Fourth Amendment, which bars unlawful searches and seizures.
Edwin Marger has tried hundreds of jury and bench trials. He has consulted for various grant agencies to the government and has dealt with state and local agencies extensively. For eight years, he was a member of the Board of Governors of the Florida Bar. He has served five years on the Board of Governors of the State Bar of Georgia and is a past chairperson of the Environmental Law Section of the Bar.
Ed Marger has been a pilot since 1949. He has flown throughout the world including many transatlantic flights. He maintains and flies a Piper Comanche. He is a past chairman of the Fulton County, Georgia Citizens Advisory Committee on Aviation, past chairman of the Pickens County, Georgia Aviation Advisory Committee, and Attorney for the Pickens County Airport Authority. He is also a past chairman of the Georgia State Bar Aviation Section.
CONTACT INFORMATION
44 North Main Street
Jasper, Georgia 30143
Phone: 706-253-3060
Toll-Free: 1-866-206-0506
Fax: 706-692-2180
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